Music Piracy and the Innocent Infringer Defense

Law Division Submission

Rachelle Pavelko
Graduate Student
The University of Memphis



2
Introduction
For the past decade, music piracy, or illegal peer-to-peer file sharing, has
played a prominent role in cases of copyright infringement on the Internet.
Countless sites such as Napster, Grokster, LimeWire, and StreamCast Networks have
operated by providing the free transfer of copyrighted music files from one user to
another. The question of just how detrimental pirated audio files are to the well-
being of the music industry is a continued source of debate. Music piracy can take
various forms:
Individuals who illegally upload or download music
online, online companies who build business based on
theft and encourage users to break the law, or criminals
manufacturing mass numbers of counterfeit CDs.
1


One of the key organizations working to promote and protect the creative
and financial vitality of the music industry is the Recording Industry Association of
America (RIAA).
2
The RIAAs stance on music piracy is unwavering: It constitutes
copyright infringement, causes a substantial loss in revenue for the music industry,
as well as a loss in tax revenue, and furthermore, leads to tens of thousands of jobs
lost annually.
3
Past landmark cases show that the Supreme Court generally supports
organizations like the RIAA and the other prominent faces of the music industry in
their attempts to stop music piracy.
4
However, once a site such as Napster has been
shut down, new sites capable of facilitating file sharing arise. Between 2003 and
2008, the RIAA brought suit against nearly 40,000 individuals for downloading and

1
Piiacy 0nline anu 0n the Stieet Novembei
<http://www.riaa.com/physicalpiracy.php>.
2
Ibid.
3
Ibid.
4
APM Records Inc. v. Naptser Inc., 239 F. 3d 1004 (2001); Metro-Goldwyn-Mayer Studios Inc. v.
Grokster Ltd., 125 S. Ct. 2264 (2005).
3
distributing audio files through such sites.
5
In December of 2008, the RIAA
announceu that it woulu abandon its policy of suing people for sharing songs
protected by copyright anu that they woulu begin to woik with Internet service
providers to cut abusers' access if they ignore repeated warnings.
6
The RIAA also
announced that it would continue to litigate outstanding cases, the majority of
which slap the defendants with excessive legal bills.
As with every debate, there is another side to the issue of music piracy.
Although the RIAA would emphatically disagree, some see music piracy as a
necessity to the music industry since the legit maiket feeus off of the black maiket
According to one writer, Almost eveiybouy owns a little stolen music A little
piiacy can be a goou thing
7
The same writer contends that for every minor
copyright infringement, music pirates buy several albums, concert tickets, and other
music paraphernalia of their favored musicians.
8

The effect of music piracy, whether viewed in a disadvantageous or
advantageous light, is not the only concern when dealing with cases of peer-to-peer
file sharing and copyright infringement on the Internet. What if the individual
charged with pirating music files was not aware of the legality of the issue? The
Copyiight Act pioviues foi what is known as an innocent infiingei iesponse
to allegations of copyright infringement.
9
Although the law allows for damages to be

5
Nusic Inuustiy Biops Effoit to Sue Song Swappeis Becembei
<http://www.allbusiness.com/legal/civil-procedure-attorneys-fees/11997808-1.html>.
6
Ibid.
7
Lev uiossman The Battle 0vei Nusic Piiacy Time, May 24, 2007,
<http://www.time.com/time/magazine/article/0,9171,1625209,00.html> (October 31, 2010).
8
Ibid.
9
17 U.S.C. 504(c)(2) (1976).
4
reduced, it does not provide that a claim of innocent infiingement can serve as a
legal defense against infringement.
By analyzing several court cases, this paper will explore the following
research questions:
RQ1: How has the rise of the Internet and new technology impacted both music
piracy and copyright law?
RQ2: What precedent has been set by previous court cases dealing with issues of
music piracy on the Internet?
RQ Bow is the innocent infiingei uefense being inteipreted in various court
cases?
RQ4: What are the varying opinions on the current state of the music industry and
controversial file sharing?

History of Copyright Law
The primary basis of copyright law in the United States was established in
The Copyright Law Act of 1976. The Act stated the basic rights of copyright holders,
clarified the doctrine of fair use in copyright law, and effectively changed the term
life of copyrights.
10
Prior to The Copyright Act of 1976, the last major revision to U.S.
copyright law had been the adoption of the original Copyright Act in 1909. Due to
advancements in technology, the law needed to be updated in order to protect the
new forms of artistic expression and communication, including television, motion
pictures, sound recordings, and radio.

10
The Law Righting Copyiight Time, November 1, 1976,
<http://www.time.com/time/magazine/article/0,9171,914652,00.html> (October 31, 2010).
5
There were significant alterations made to the original Act through the
adoption of The Copyright Act of 1976. First, the new legislation made it much
easier for authors to obtain protection for their works.
11
Under the 1909 Act, works
had to be registered with the Copyright Office in order to receive federal copyright
protection.
12
The elimination of this requirement allowed for better protection of
materials. The 1976 Act also made it easier to maintain that protection by changing
the measuie of the copyiights teim 0nuei the new Act, a single term for the life of
the author was provided with the addition of 70 years.
13
Protection for the renewal
term under the original act was much more stringent; it could only be secured by
registration of a renewal with the Copyright Office during the last year of the first
term, and failure to renew resulted in the complete loss of copyright.
14

The fair use defense is another imperative section of the 1976 Act. The fair
use of a copyrighted work is not copyright infringement, even if such use technically
violates the exclusive rights of the author of the copyrighted material.
15
The
Copyright Act lists four factors that need to be considered when deciding if use of a
particular work can be deemed fair use: the purpose and character of the use; the
nature of the copyrighted work; the amount and substantiality of the portion of the
original work used; and the effect of the use upon the market for the original work.
16

The U.S. Copyright Act provides protection for a variety of artistic
expressions. Works of authorship are to include: musical works; literary works;

11
Ibid.
12
Ibid.
13
17 U.S.C. 302 (1976).
14
The Law Righting Copyiight
15
17 U.S.C. 107 (1976).
16
Ibid.
6
dramatic works; pictorial, structural, and graphics; motion pictures and
audiovisuals; sound recordings; and choreographic works and pantomimes.
Architectural works was later amended to the Act in 1990.
17

The Act also establishes the five exclusive rights granted to copyright
holders: the right to reproduce; the right to creative derivative works of the original
work; the right to sell, lease, or rent copies of the work to the public; the right to
perform the work publicly; and the right to display the work publicly.
18
In 1995, the
Copyright Act was amended to include the right to perform a sound recording by
means of digital radio, making a total of six exclusive rights to copyright holders.
19

In addition to the Copyright Act of 1976, another major act that has since
been established in an attempt to regulate copyright infringement, more specifically,
infringement on the Internet, is the Digital Millennium Copyright Act (DMCA). In
October of 1998, President Clinton signed the DMCA into law. The Act implements
two 1996 World Intellectual Property Organization (WIPO) treaties: the Copyright
Treaty and the Performances and Phonograms Treaty. In essence, the DMCA
heightened the penalties for copyright infringement on the Internet and for the
production and distribution of technology, devices, or services intended to gain
illegal access to copyrighted works.
20
It is important to note, however, that the
DMCA does exempt Internet service providers (ISPs) from issues of copyright

17
17 U.S.C. 102 (1976).
18
17 U.S.C. 106 (1976).
19
Ibid.
20
H.R.2281 103 (1998).
7
liability for simply transmitting copyrighted material that individual users have
uploaded and made public on the Internet.
21

Copyright Infringment and the Internet
The purpose of copyright law in the United States is to provide protection for
authors and artists alike and their various works. The possibility that an individual
would try to claim the work of an author as his or her own, or to knowingly
reproduce the work without the authois consent is the basis of copyiight
infringement. It occuis when a copyiighteu woik is iepiouuceu uistiibuteu
performed, publicly displayed, or made into a derivative work without the
permission of the copyiight ownei
22
Because the federal copyright statute does not
explicitly define infringement, it must be decided on a case-by-case basis. When
dealing with an infringement case, the courts usually look at three main criteria: the
oiiginality of the plaintiffs woik that an oppoitunity to copy the woik existeu anu
whether the work was successfully copied.
The advent of the Internet has impacted nearly every aspect of modern
culture, and music piracy is no exception. The Internet changed the face of music by
eliminating the need for cassettes or CDs to be played through a stereo. The ease of
downloading MP3 (Moving Picture Expert Group) audio files onto a computer,
coupled with the simplicity of transferring the audio files to an MP3 player (such as
an iPod), alleviated the need to purchase music from a retail store. And in the case of

21
Ibid.
22
Copyiight Befinitions 0S Copyiight 0ffice, <http://www.copyright.gov/help/faq/faq-
definitions.html> (November 5, 2010).
8
piracy, the Internet has eliminated the need to purchase music altogether. Websites
such as TorrentFreak.com and ThePirateBay.com have not yet been shut down and
allow users to upload copyrighted audio files that can then be downloaded by a slew
of users, at no cost. The Internet has changed piracy from the mass production of
counterfeit CDs sold by street vendors into a virtually effortless and free means of
peer-to-peer file sharing from one computer to another.
Cases Involving Music Piracy and the Internet
The first landmark case that addressed copyright infringement, in terms of
file-to-file sharing on the Internet, took place in 2001. In A&M Records, Inc. v.
Napster, Inc, the plaintiffs allegeu contributory and vicarious copyright
infiingement by Napstei anu fileu foi a pieliminaiy injunction to stop the
downloading of songs through the website immediately.
23

Napster was founded in 1998 by Shawn Fanning, a 19-year-old freshman at
Northeastern University. Fanning wanted to create an accessible website for people
to search and post songs. Fanning wiote a simple piogiam that woulu seaich anu
inuex music files anu by aggiegating all the websites in one cential location
Fanning alloweu useis to easily sift thiough hunuieus of sites
24
Fanning teamed
up with Internet mastermind Sean Parker, and with the financial backing of
Fannings uncle Napstei became a viitual oveinight success According to King,

23
284 F.3d 1091 (2002).
24
Biau King The Bay the Napstei Bieu Wired, May 15, 2002,
<http://www.wired.com/gadgets/portablemusic/news/2002/05/52540>.
9
0nce enough people hau Napstei on theii computei the numbei of files being
traded back and forth would reach the billions..
25

Shortly thereafter, the RIAA brought its plan into fruition to stop sites from
facilitating illegal audio file downloads. Although the court case is referred to as
A&M Records v. Napster, the list of plaintiffs actually included twenty members of
the RIAA.
26
Napster was being charged with both contributory and vicarious
infringement. The court said that in order to prove the first, contributory
infringement, the plaintiff would have to show that Napster knew that its users were
distributing copyrighted works without the permission of the authors through their
network.
27
When addressing the allegation of vicarious infringement, the court had
to decide whether or not Napster benefitted financially from the infringement of its
users.
28
The final ruling handed down by the U.S. Court of Appeals for the Ninth
Ciicuit helu that Napstei coulu be helu liable foi both contiibutoiy anu vicaiious
infiingement of the plaintiffs copyiights
29
In 2001, Napster settled with multiple
recording artists and music publishers for a total of $26 million and filed for
bankruptcy the following year, effectively ending its reign as an audio file
downloading powerhouse.
A second case involving copyright infringement on the Internet through
illegal peer-to-peer file sharing is Metro-Goldwyn-Mayer (MGM) Studios, Inc. v.
Grokster, Ltd. In 2005, the case was heard at the Supreme Court level after Grokster

25
Ibid.
26
284 F.3d 1091 (2002).
27
Ibid.
28
Ibid.
29
Ibid.
10
and Streamcast had won at the U.S. District Court for the Central District of
California and at the Ninth Circuit Court of Appeals. The premise of the court case
was that the plaintiffs, a conglomeration of 28 of the largest music industry leaders,
led by MGM, wanted to hold the file sharing sites Grokster and Streamcast
accountable for acts of copyright infringement.
30
The defendants believed that since
their site could be used for the legitimate downloading of works in the public
domain, they should not be liable foi the useis infiingements Bowevei the
Supreme Court saw that Grokster was primarily marketed as software that could be
used to infringe copyright.
31
The Supreme Court therefore unanimously concurred
that Grokster could be held liable for copyright infringement. The opinion was given
by Justice Souter, who wrote the following,
We hold that one who distributes a device with the
object of promoting its use to infringe copyright, as
shown by a clear expression or other affirmative steps
taken to foster infringement, is liable for the resulting
acts of infringement by third parties.
32


The decision handed down by Justice Souter is often described as a re-
examination of a previous case that protected VCR manufacturers from liability for
infringement.
33
In Sony Corp. v. Universal City Studios, the Supreme Court ruled that
technology coulu not be banneu if it was capable of substantial non-fringing
uses
34
This proves to be unlike the Grokster ruling, since the Court saw the

30
125 S. Ct. 2264 (2005).
31
Ibid.
32
Ibid.
33
Sony Corp. v. Universal City Studios, 464 U.S. 417 (1984).
34
Ibid.
11
principal purpose of the website as a facilitator of illegal downloading with little to
no legitimate legal use.
Virgin Records America, Inc. v. Thompson is an example of a copyright
infringement case in which a major recording label and its various recording
companies targeted an individual user for music piracy. In July 2006, Virgin
Records, Sony BMG Music Entertainment, Arista Records, LLC, and UMG Records,
INC. (the plaintiffs, collectively), filed a copyright infringement action against Cliff
Thompson on the basis that he used a file-sharing program to illegally distribute
digital audio files.
35
The plaintiffs uiscoveieu that a usei nameu gigetteKaZaA
was distributing hundreds of digital audio files using the file-sharing site, KaZaA,
and the plaintiffs were able to successfully trace the Internet Protocol (IP) address
to an account registered to Thompson.
36
The plaintiffs then sent a letter to
Thompson to notify him of their intent to sue for copyright infringement. After
several months without response, Thompson finally filed an answer and a
counteiclaim iequesting attoineys fees that accuseu Plaintiffs of engaging in sue
fiist talk latei litigation
37
The uistiict couit uenieu Thompsons motion foi
attoineys fees unuei the Copyiight Act 17 U.S.C. 505, which was affirmed by the
U.S. Court of Appeal for the Fifth Circuit.
38

Another case that highlights action taken against a specific individual, in this
instance, a college student, is BMG Music v. Clayton. Sony BMG Music Entertainment
issued the defendant, Vanessa Clayton, a complaint for copyright infringement in the

35
512 F.3d 724 (2008).
36
Ibid.
37
Ibid.
38
Ibid.
12
summer of 2008. According to the plaintiffs, Clayton violated their exclusive rights
to iepiouuce the copyiighteu woiks to the public by using and continuing to use,
without the consent or permission of Plaintiffs, an online media distribution
system
39

The Clayton case originated in March of 2007 when an investigator working
for BGM detected Claytons use of LimeWire, a popular peer-to-peer file sharing
network at that time. Clayton had illegally downloaded 414 music files onto her
computer and was distributing the files to other users through the Internet network
provided by Northern Arizona State University.
40
BGM tried to contact Clayton
about the lawsuit, and after eight failed attempts, requested a motion for a default
judgment.
41
The U.S. District Court for the Northern District of California denied the
plaintiffs motion
The final landmark cases involving music piracy depict the magnitude of the
crime in regard to penalties handed down by the court. The first, Capitol v. Thomas-
Rasset, began in 2005 when the RIAA sent single mother Jammie Thomas-Rasset a
cease-and-desist letter and settlement offer. The defendant refused to settle and was
therefore sued by several major recording labels for copyright infringement. In
2007, Thomas-Rasset was found liable for illegally downloading 24 songs by various
artists, including Gloria Estefan, No Boubt }ouiney Biyan Auams anu Bestinys
Child, thiough KaZaA unuei the useiname TeieastaiiKaZaA.
42
Thomas-Rasset

39
BMG Music v. Clayton, U.S. Dist. LEXIS 119733 (N.D. Cal., 2009).
40
Ibid.
41
Ibid.
42
Capitol Records Inc. v. Thomas, U.S. Dist. LEXIS 106225 (D. Minn., 2008).
13
was ordered to pay $222,000 in statutory damages; however, the court later granted
her motion for a new trial based on an error in jury instructions.
43

Thomas-Rassets second trial was held on June 15, 2009. The jury was
instructed to find the owneis copyiights weie infiingeu pioviueu the ownership
claims were valid and provided there was an infringement of either the
iepiouuction iight oi the uistiibution iight
44
Three days after the second trial
began, the defendant was again found liable for copyright infringement for all of the
24 songs in question, and was ordered to pay the plaintiffs $1.92 million ($80,000
per song) in statutory damages.
One month following the second trial, the plaintiffs filed a motion asking for
an injunction that would require Thomas-Rasset to destroy all of the songs she had
downloaded illegally. The plaintiffs based their motion for injunction on the trial
eviuence that the uefenuant was uistiibuting sounu iecoiuings to millions
of othei useis
45
On the same day, Thomas-Rasset also filed a motion claiming the
statutoiy uamage awaiu was so uispiopoitionate to actual uamages as to be
unconstitutional
46
The uefenuants motion calleu for a retrial, a reduction of
damages to $750 per song; $18,000 total (the statutory minimum), or a complete
removal of statutory damages.
47

In January of 2010, Thomas-Rassets uamages weie ieuuceu to aftei

43
Ibid.
44
Capitol Records Inc. v. Thomas-Rasset, U.S. Dist. LEXIS 5049 (D. Minn., 2010).
45
Ibid.
46
}aikumai vijayan Third trial to begin in $1.92M Nusic Piiacy Case Computer World, October 26,
2010,
<http://www.computerworld.com/s/article/9192999/Third_trial_to_begin_in_1.92M_music_piracy_
case?source=rss_news>.
47
Ibid.
14
Judge Davis referred to the original $1. million sum as monstious anu
shocking
48
The plaintiffs then approached the defendant with a $25,000
settlement, Thomas-Rasset declined, which then caused the plaintiffs to reject the
damage reduction ordered by Judge Davis.
49
A third trial was scheduled to begin on
November 2 in federal court in Duluth, Minnesota. This trial is supposed to focus
solely on the damages that Thomas-Rasset will potentially have to pay to the six
recording labels involved in the lawsuit.
50

The final landmark case, one that further highlights the extreme damages
often awarded to the music labels, involves the defendant Joel Tenenbaum, a
doctoral student at Boston University, and his library of over 1,000 pirated audio
files. However, the plaintiffs in this case (Sony BMG; Warner Brothers Records, Inc.;
Atlantic Recording Corp.; Arista Records, LLC; and UMG Recordings, INC) brought
suit against Tenenbaum on the basis of only 30 pirated songs.
51
Tenenbaums fiist
trial began in July 2009, and the court founu that he knew that file-sharing was
illegal that he tiieu to shift blame to otheis who hau access to his computei anu
furthermore, that he lieu unuei oath in an attempt to escape liability
52
The jury
founu that the uefenuant has willfully infiingeu plaintiffs copyiights anu imposeu
uamages of pei song a gianu total of
53
Tenenbaum appealed,
and during this past July, Judge Nancy Gertner of the U.S. District Court in Boston

48
Ibid.
49
Ibid.
50
Ibid.
51
Sony BMG Music Entertainment, et al v. Tenenbaum, 564 F.3d 1, U.S. App. LEXIS 8084 (1st Cir.
Mass., 2009).
52
Ibid.
53
Tenenbaum v. Sony BMG Music Entertainment, et al, 130 S. Ct. 126 (2009).
15
ieuuceu the uefenuants fines fiom $675,000 to $67,500, stating that the jurys
initial award was excessive under the Due Process Clause of the Fifth Amendment
because the award was far greater than necessaiy to seive the goveinments
legitimate interests in compensating copyright owners and deferring
infiingement
54
Both paities fileu notice to appeal ueitneis iuling on }uly
In the previous cases, both federal and state courts have attempted to define
what constitutes copyright infringement on the Internet through instances of music
piracy. The decisions in these cases set an important precedent: The courts
generally rule in favor of the RIAA and major recording labels in an effort to
eliminate illegal downloading and distribution. Although appealed and often
reduced, it is apparent through these cases that the courts slam individuals with
excessive fines for copyright infringement on the Internet. The hefty statutory
damages awarded to the recording labels often stem from the mass distribution and
peer-to-peer file sharing that occurs between users and not just the act of
downloading a few songs illegally. Cases of music piracy can be seen as a re-
examination of Sony Corp. v. Universal City Studios; however, in instances of illegal
downloading, sites such as Napster, Grokster, LimeWire, KaZaA and countless
others have been founu to have no substantial non-fiinging uses anu aie cieateu
and used with the sole intent to infringe copyright.
55

Cases Involving the Innocent Infringer Defense

54
Ibid.
55
464 U.S. 417 (1984).
16
One section of the 1976 Copyright Act provides a response for users who did
not initially understand that their actions qualified as copyright infringement.
Although a claim of innocent infringement does not serve as a defense against
infringement (the innocent infringer is still liable), courts may reduce the amount of
damages awarded.
56

In a case where the court finds that such infringer had no
reason to believe that his or her acts constituted an
infringement of copyright, the court may reduce the
award of statutory damages to a sum of not less than
$200.
57


Several court cases have set precedents regarding when the innocent
infringer response can be applied to copyright infringement. Bright Tunes Music
Corp. v. Harrisongs Music determined that the innocent infringer response could be
useu when the uefenuants woik is copieu fiom the plaintiffs but was uone
subconsciously anu in goou faith having foigotten that plaintiffs woik was the
source.
58
In a similar fashion, innocent infringement is germane when the
uefenuant consciously anu intentionally copies fiom the plaintiffs work with a
goou faith belief that theii actions uo not constitute as infringement.
59
The last
scenario that allows for a response of innocent infringement is when the uefenuants
work is based upon an infringing work provided by a third party.
60

Although these cases show that the innocent infringer response can aid in
reducing the hefty fines attached to cases of copyright infringement, the burden of

56
17 U.S.C. 504 (c)(2) (1976).
57
Ibid.
58
420 F. Supp. 177 S.D.N.Y. (1976).
59
Wihtol v. Crow, 309 F.2d 777 (8th Cir. 1962).
60
Buck v. Jewell-La Salle Realty Co., 283 U.S. 191, 198 (1930).
17
proving innocent intent is not easy anu iests solely on the uefenuants shoulueis As
defined in Branch v. Ogilvy & Mather, Inc., the defendant must substantially prove
that it uiu not know anu shoulu not have known that its conuuct constituteu
infiingement
61
The case of Peer Intl Corp v Pouso RecorJs lnc further exemplified
the burden of proving innocent infringement by stating that the defendant must
establish good faith belief in the innocence of its conuuct anu also that it was
reasonable in holding such a belief
62

Maverick Recording Company v. Harper is a recent case that involves the
illegal downloading of audio files and the use of the innocent infringer response. The
defendant, Whitney Harper, was 16 when she was charged with copyright
infringement through the use of the previously popular downloading website
KaZaA Baipei unueistoou KaZaA anu othei file sharing programs to be akin to
listening on a legitimate Inteinet iauio station
63
Buiing the time of the uefenuants
downloading, KaZaA claimed to be 100 percent legal on the site homepage.
64
The
uistiict couit that initially heaiu Baipeis case ueciueu that theie was a genuine
issue as to the character of her infiingement anu alloweu hei to use the innocent
infringer response.
65
The couit was theiefoie able to ieuuce the uefenuants fines
from $750 per infringed work to the minimum of $200.
66

However, on appeal by the plaintiffs, the U.S. Court of Appeals for the Fifth
Circuit reversed the uistiict couits decision and held Harper liable for $750 per

61
131 F.Supp.2d 458, 476 S.D.N.Y. (2001).
62
498 U.S. 1109 (1991).
63
Phil Hill, Maverick Recording Company v. Whitney Harper Music Think Tank (blog), June 7, 2010,
<http://www.musicthinktank.com/blog/maverick-recording-company-v-whitney-harper.html>.
64
Ibid.
65
Ibid.
66
598 F.3d 193 (2010).
18
illegally downloaded audio file. The rationale behind the reversal was that the
copyright notices found on the CDs (containing songs that Harper had infringed)
weie sufficient to foieclose the innocent infiingei uefense as a mattei of law
67

Harper is just one of 40,000 individuals that the RIAA has targeted and
brought suit against for music piracy. If the decision handed down by the U.S. Court
of Appeals for the Fifth Circuit is upheld, it will essentially make downloading of
copyrighted material a strict liability offense when the plaintiffs only seek the
statutory minimum of $750 per infringed work.
68
The final outcome of the Maverick
Recording Company v. Harper case has the potential to a set a precedent that will
prove applicable to all cases of copyright infringement on the Internet. If the
appellate uecision in this case holus up it means that no fuithei infoimation can be
taken into account in a file sharing case and it will affiim the sufficiency of access
as defined by the Fifth Circuit, essentially creating a legal shortcut to acquiring
excessive damages.
69

Arguments For and Against the Regulation of Music Piracy
The debate over the court ruling in the Maverick Recording Company v.
Harper is merely the tip of the iceberg with regard to just how detrimental music
piracy is to major recording labels and the industry as a whole. The RIAA is the key
player on one side of the music piracy spectrum. The organization credits the term
piiacy as being too benign anu claims that it uoesnt even begin to auequately

67
Ibid.
68
Hill, Maverick Recording Company v. Whitney Harper
69
Ibid.
19
uesciibe the toll that music theft takes on the music inuustiy anu all those
involved.
70
The RIAA cites piracy as a cause for $12.5 billion in economic losses and
over 71,000 U.S. jobs lost annually.
71
The pirate marketplace dwarfs the legal
marketplace, and, Plain anu simple Piiacy is bau news
72

In response to the illegal downloading and distribution of audio files on the
Internet, the RIAA has employed a multi-faceted approach that combines education,
innovation, and enforcement. The RIAA has countless investigators deployed across
the 0S anu is woiking in conjunction with law enfoicement officials to pull piiateu
products off the street and to demonstrate that the consequences for this illegal
activity aie ieal
73
The RIAA also continues to police the Internet for websites
capable of facilitating the illegal downloading and distribution of audio files. Most
recently, the decision to disable the seaiching uownloading, uploading, file trading,
anuoi file uistiibution functionality of popular site LimeWire was handed down
by Judge Kimba M. Wood after a four-year battle between the website and the
RIAA.
74
As of 2008, the RIAA abandoned its previous policy of targeting and bringing
suit against individual users for music piracy and is now focusing on issuing
warnings to users who are illegally downloading or distributing and ultimately
discontinuing Internet access for repeat offenders. The RIAA continues to educate
music enthusiasts about the legal ways to acquire audio files, while simultaneously
promoting the record companies that have chosen to license hundreds of digital

70
Piiacy: Online and On the Street
71
Ibid.
72
What is the RIAAs 0fficial Stance on Piiacy Novembei
<http://www.riaa.com/faq.php>.
73
Piracy: Online and On the Stieet
74
Tim Aiango }uuge tells LimeWiie the File-Trading Service to Bisable Its Softwaie NYTimes,
October 26, 2010, <http://www.nytimes.com/2010/10/27/technology/27limewire.html>.
20
partners that offer a range of legal avenues for users to download and distribute
files. Examples include: download and subscription services, cable and satellite
radio services, Internet radio webcasting, legitimate peer-to-peer services, video-
on-demand, podcasts, wallpapers, and audio and video downloads.
75

The contrasting side of the debate takes a stance that music piracy is not
detrimental to the livelihood of musicians or to the well-being of the music industry,
nor are all consumers of music hardened criminals. Those opposed to the excessive
penalties placed on users who infringe copyrights through music piracy believe that
the RIAA and major recording labels need to change how consumers spend their
money on music. People like to share their music, and since the Internet allows for
such a convenient and cost-free transfer of audio files, it is up to the music industry
to change the business model.
76
Several artists, including Jason Mraz, Heart, and
Steve Winwood, have come out in support of the idea of free music downloading and
distribution of copyrighted works.
77
Other musicians such as Adam Duritz, Annie
Lennox Chuck B Petei uabiiel Baviu uiay anu Pink Floyus Nick Nason have
inuicateu that they uo not believe the public shoulu be piosecuteu foi theii
uownloaus
78

The steep financial penalties attached to cases involving music piracy are the
major issue of those opposed to how the law is currently applied. Although litigation
against individuals has since ceased from the initial storm of lawsuits that surfaced
in 2003, ongoing cases still show users who violated copyright law being slapped

75
Ibid.
76
Music Industry Drops Effort to Sue Song Swappers
77
Hill, Maverick Recording Company v. Whitney Harper.
78
Ibid.
21
with penalties that are hundreds of thousands of dollars some of which run into
the millions.
79
The constitutionality of these suits is questionable, since the courts
can legally impose damages of $150,000 per infringed work based on the Digital
Theft Deterrence and Copyright Damages Improvement Act of 1999.
80
Such
exorbitant fees do not match the crime; the fines are far in excess of any actual
damage caused to the economic vitality of the music industry. Charles Nesson, a
Harvard law professor and the attorney for a defendant facing fines well over a
million dollars, believes that even the possibility of such a severe price to pay for
illegally uownloauing anu uistiibuting auuio files to be ciuel anu unusual
punishment
81

Conclusion
Advancements in technology and the explosion of the Internet created new
opportunities for music piracy. No longer confined to the production of counterfeit
CDs, piracy took shape on the Internet through the advent of peer-to-peer file
sharing sites such as Napster, Grokster, and countless others. The rulings in
landmark cases, such as A&M Records, Inc. v. Napster, Inc.show that the courts have
set a precedent favoring the music inuustiys majoi recording labels and the RIAA.
82

Allegations of music piracy on the Internet have become an extremely
controversial topic, and in many cases, the issue begs the question of what

79
Maverick Recording Company v. Harper, 598 F.3d 193 (2010).
80
Associateu Piess No Noie File-Shaiing Suits foi RIAA Daily Variety, December 22, 2008,
<http://www.lexisnexis.com/hottopics/lnacademic/> (October 31, 2010).
81
Nusic Inuustiy Biops Effoit to Sue Song Swappeis
82
284 F.3d 1091 (2002).
22
constitutes infringement. The innocent infringer response in a court of law is not
often interpreted advantageously for the defendant. Excessive fines are occasionally
reduced, however, a decision often appealed by the plaintiffs, which further extends
the legal battle and only adds to the financial burden the defendant faces by
continuing to acquire a hefty bill for a legal defense.
83

The issue of music piracy, when seen through the eyes of the RIAA, is clear
and concise: It constitutes as copyright infringement and offenders need to be
prosecuted. Although the law tends to side with the RIAA and other major players in
the recording industry, it is apparent through the disproportionate penalties and
constant appeals that the process of trying music piracy cases is anything but sound.
Sites that promote and facilitate music piracy continue to flourish, and it is
unreasonable to believe that the RIAA is capable of tracking down each individual
website, bringing suit, and effectively discontinuing their downloading and
distributing capabilities. The RIAA will continue to struggle in its efforts to stamp
out piracy, and those who favor the use of music piracy sites will merely relocate
when their servers are shut down. The process is simply inefficient. A compromise
must be found between the RIAA and sites used for downloading and distributing
audio files in order to revamp the current state of the music industry.

83
Maverick Recording Company v. Harper, 598 F.3d 193 (2010).