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File-Sharing Friction

BU profs say suing students won’t help the RIAA

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Leo Reyzin (left) and Azer Bestavros, CAS computer science profs, say the recording industry's "litigation campaign" is a wrongheaded approach to protecting music copyright. Photos courtesy of Azer Bestavros and Leo Reyzin

The call came last summer. Lawyers for two Boston University students charged with online music piracy by the Recording Industry Association of America (RIAA) needed an expert witness, and they asked Azer Bestavros, a College of Arts and Sciences computer science professor, who provided sworn testimony against a technical underpinning of the case against the students. Bestavros and other computer scientists contend that the RIAA’s enforcement methods are inexact and counterproductive and that copyright laws themselves are out of sync with the realities of computer technology.

The case, which remains before the court, is just one battle in a war over music-sharing that contrary to what many believe, did not end in 2001 when a court order brought down Napster. In fact, the fight over downloads grows only fiercer as more decentralized peer-to-peer P2P services sprout up, broadband connections make file-swapping faster and easier, and the era when music had to be bought on CDs (or dubbed onto cassettes) fades from memory.

The RIAA, which represents most major record labels, says music piracy threatens the heart of a creative industry. Critics argue that the recording industry needs to develop a new business model for the digital age. Bestavros believes that the RIAA has the right to prosecute copyright infringers, but he and Leo Reyzin, a CAS associate professor of computer science, have spoken out publicly against the association’s increasingly aggressive copyright enforcement tactics. Those efforts have tagged thousands of college students as lawbreakers and spawned legislation that could force universities to crack down on their students’ computer network use or risk losing federal financial aid funding.

The case that brought the professors into the digital copyright debate involves RIAA charges that the BU students were distributing copyrighted material by joining a P2P service and putting songs into shared folders on their computers, thereby making the music available to everyone on the network.

According to Crystal Talley, an associate general counsel at BU, the RIAA has sued about 100 BU students since fall 2004. But before it can sue for damages (the minimum penalty being $750 per song), the industry group must subpoena universities for the names of students registered to the IP addresses identified in sweeps of P2P sites it commissions.

And well before things reach the level of a lawsuit, RIAA security contractors e-mail notifications of infringement to BU’s Office of Information Technology, which forwards them to network users. BU is number 15 on RIAA’s list of universities receiving the most cease-and-desist notices.

BU students have also received about 125 prelitigation letters, the next step up on the enforcement ladder from notices; the RIAA began sending these letters in February 2007 at a rate of about 400 per month. The letters warn alleged infringers that the industry intends to subpoena the University for their names and sue for copyright infringement unless those accused agree to an out-of-court settlement of between $3,000 and $6,000.

Although the RIAA maintains that its litigation campaign is an effective deterrent, Bestavros and Reyzin say it’s capricious and counterproductive. They argue that the RIAA’s practice of identifying computer users by the IP address is too unreliable to use as a basis for prosecution because these addresses are linked to computers or routers, not people. Wireless connections, for instance, can put multiple users online through a single IP address. And while BU forbids wireless routers in its residential network and University network guidelines state that registered users are responsible for any use of their account, Bestavros says a tech-savvy student could relatively easily “spoof an innocent student’s computer address” in order to file-share.

“I would be very concerned about accusing somebody with a one in 1,000 probability that I’m wrong,” he says. “This is not like DNA evidence.”

Plus, Bestavros says, RIAA enforcement is simply accelerating the adoption by file-sharers of technologies such as layered Tor networks that are more difficult to put under surveillance.

Justin Kaufman (CAS’09), a member of the Student Union technology committee, says that among the students he knows the P2P crackdown also increases the use of more private file-sharing methods, such as e-mail or instant messaging. “It’s become more of a social phenomenon,” says Kaufman. “It’s not just sharing with the world anymore.”

Then there’s the question of why the RIAA focuses so much on college students. RIAA spokesperson Cara Duckworth says that research indicates “that a disproportionate amount of music-sharing is being done on college campuses.” She cites a 2006 survey by the college market research firm Student Monitor, in which more than half of student respondents said they download illegally.

At least one BU student who has been pursued by the RIAA believes the industry targets college students because they are easy to scare. In February, Paul Sawaya (CAS’10) received a 200-page demand from the RIAA that he shut down the “Jukebox” application he’d created for Facebook, which allowed people to post a playlist of links to music hosted on another site. After seeking legal advice and finally tracking down an RIAA representative, Sawaya learned that he could keep the application active if he deleted links to songs the RIAA listed as protected by copyright.

“The RIAA played on my ignorance of the law, hoping that I would just shut down my site,” he says.

Of course, exactly what digital copyright law allows is still being hashed out in the courts. The RIAA initially claimed that it was able to determine that the music files hosted by the BU students were illegal copies. Bestavros disagreed, writing in a sworn statement last July, “It is not possible to distinguish between a music file obtained from a licensed, legal source (e.g., original CD) and the same music file obtained illegally (e.g., through file sharing).”

The RIAA’s main charge, that the BU students were distributing copyrighted music simply by making the files available online, has met different responses in different courts. However, Bestavros and Reyzin worry about the implications of prosecuting people for “making available” copyrighted material. After all, Reyzin noted at one of two April panel discussions on digital copyright sponsored by BU’s Dean of Students Office, “the main purpose of a computer is to copy and move information from place to place.”

Reyzin and Bestavros are also critical of federal legislation supported by the RIAA that would require universities to institute either subscription-based music services or more aggressive filtering of P2P traffic on their networks or risk losing federal financial aid funding. That legislation has passed the House and is being considered by a Senate committee.

Not only do such mandates require a huge investment in technology and personnel, Bestavros says, but deputizing school administrators as copyright enforcers puts the University in “a weird position” — policing rather than educating its students.

Bestavros emphasizes that he doesn’t believe BU itself should take a position in this debate. After all, he says, “we’re a diverse institution with many opinions.” Still, he would like to see the University get “ahead of the curve” in terms of discussing the implications of digital copyright laws and new business models that could duly compensate copyright holders while allowing online consumers the information access and freedom they cherish.

Several alternatives have already been proposed by places such as the Electronic Frontier Foundation, a San Francisco–based digital rights advocacy group, and Harvard University’s Berkman Center for Internet and Society, loosely based on some form of collective licensing akin to what radio broadcasters use.

The RIAA’s Duckworth notes that the industry already advocates that universities offer flat-fee music subscription services such as Ruckus. However, Dean of Students Kenneth Elmore says, University administrators had considered Ruckus, but noted several shortcomings, such as the service’s incompatibility with Macs and iPods, its relatively small music catalogue, and the fact that music files can be played only for as long as one subscribes to the service.

The bottom line, Bestavros argues, is that the industry can’t enforce its way out of its piracy predicament. Continued attempts to do so will spur the development of new file-sharing networks and new means to encrypt and cloak network user identity, leading to an Internet “arms race” with plenty of collateral damage — falsely accused students, improperly filtered online communication, wasted resources, and stifled innovation — but no solution to illegal downloads. “At the end of all this effort,” he predicts, to truly stop music file-sharing, “you’re going to have to cut the wire.”

Chris Berdik can be reached at cberdik@bu.edu.

10 Comments

10 Comments on File-Sharing Friction

  • Anonymous on 05.07.2008 at 12:12 pm

    A very important court case

    The development of Sweden’s piratebay.org VS “I dont remember what company” case, has triggered lots of discussion on the subject internationally but especially in Europe.
    I think that if they go down (which they claim to be impossible) it will cause a trickle effect that little by little will take away parts of our most basic freedoms.

  • Anonymous on 05.07.2008 at 12:15 pm

    RIAA, Sit in your mess.

    The music industry had a chance to embrace new technologies and create something like Napster or Oink on their own, ushering in the next generation of digital recording and digital audio files; however they saw this whole “internet thing” as a threat and tried to stifle innovation and evolution- which never has worked…ever. The Record labels are crashing and dying because of their own ignorance and close-mindedness. A wise man once said, “desperation is a stinky cologne”, and the RIAA is bathing in that stuff, because they really STINK.

  • Towka Pikie on 05.07.2008 at 12:26 pm

    The problem is the middleman

    The sharing habit and dynamics of “content consuming” people and the social phenomenon are difficult to understand. The suggestion is to keep doing whatever you like to do as long as you don’t get sued by entities like RIAA or MPAA who makes this practice a profitable business model. This could mean that you abide by the copyright law, or you sneak around the corner. Fortunately, at least the “content producing” part of the equation is beginning to take shape.

    Some musicians, producers or artists simply don’t care so much about profit, and they just would like to reach out to as many people as they can. These are typically talents who have not enjoyed commercial success yet, but they have other means to support themselves. It was traditionally expensive to build the media distribution network (radio/TV stations, retail stores, etc.), and the network was available only to a few selected talents. The Internet makes it available to any content producers to cheaply distribute their creations.

    Eventually, most talents want to reap commercial success if they make it, so the question is, would the use of Internet as distribution medium forfeit their chance to make money? Fortunately, there are labels like Magnatune who have more Internet-friendly terms and does not prevent the musician from making money. YouTube is also sharing advertising profit with video makers. We now have more Internet-savvy middleman helping creative talents keep the cake and eat it.

    At least, considering the terms of these new distributors, it is much easier to bypass aggressive middleman represented by RIAA and MPAA. Under the new terms, you get to abide by the copyright law and hopefully also satisfy your sharing habits.

    As long as both content producers and content consumers choose the middleman wisely, we wouldn’t have the abusive copyright litigation problems we see today.

  • Jon Niehof on 05.07.2008 at 1:32 pm

    Unauthorized investigations

    It’s worth noting that MediaSentry, which provides all those lists of IP addresses to the RIAA, is not authorized to conduct investigations in Massachusetts.

  • Anonymous on 05.20.2008 at 2:59 pm

    Recent post on curbing RIAA requests...

    http://netequalizer.wordpress.com/2008/05/17/curbing-riaa-requests-on-your-student-network/

  • Maki on 07.30.2008 at 12:27 am

    nice post

    You gained a new reader today, nice post!

  • Nick from Avvo on 08.21.2008 at 8:40 pm

    The expert witness said that 1/1000 will be falsely accused. Although this may be unnerving because it’s not 100% certainty, 99.9% certainty is far above the more likely than not burden in civil court. Out of all the things to criticize the RIAA about, I don’t think this is one of them.

    Regardless, I think the real problem is that the RIAA is using bully tactics so that these things never get to court at all. No poor college student is going to find a lawyer and spend tens of thousands of dollars defending a case in court when he can get out of it completely for $6,000.

    Regarding universities being put in a weird position, why should universities be in position of being responsible for students by providing internet access? Why don’t universities do the same thing apartment complexes do for their dorms- contract with a private company to wire the building, and then have the students pay for internet plans a la carte? This way it’s between the RIAA, the students and the ISP?

    – Nick from Avvo

  • San Francisco lawyer on 01.09.2009 at 1:53 pm

    Well, I suppose this is all in the past now that the RIAA has announced they’re no longer using lawsuits as a copyright defense strategy. I have to wonder what took them so long to reach the conclusion, and why now, of all times, did they finally decide their time and money are best spent elsewhere. Was it bad publicity? Mounting resistance from those falsely accused? Who knows, but as we advance into the digital age, this period of RIAA mass suing will probably be viewed as a bizarre act of defiance by a group unwilling to accept that times have changed. It still remains to be seen whether they’re find a business model that will allow them to survive.

    Nickfromavvo
    San Francisco personal injury lawyer

  • Denver Attorney on 08.06.2009 at 3:02 pm

    End of Lawsuits?

    Just to update, the RIAA has successfully sued that Minneapolis woman, Jammie Thomas-Rasset. She was accused of illegally downloading music and was found guilty of violating the copyrights on 24 songs and is liable for $1.92M or $80,000 per song The damages seem excessive. These songs could be bought, especially since those same 24 songs (by Gloria Estefan, Journey, Sheryl Crow, and Green Day, among others) can be had for under $25 on iTunes. There’s no way they’re ever going to get that ridiculous amount of money. As an injury attorney, it would be nice to get 1/3 of that amount.

  • Roger on 08.25.2010 at 6:50 pm

    Filesharing crackdown

    In our Country the main internet provider have a 2 strikes and you are out policy. If you are caught illegally downloading music, you get a warning letter. If you get caught again, you are disconnected. Simple as that.best interest rates on savings

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