'Don't Shoot The Messenger: Copyright Infringement In The Digital Age'

Music Industry Lawyer and Senior Lecturer in Law, Buckinghamshire Chilterns University College, High Wycombe, Buckinghamshire, England, UK

From the humble VHS machine to Internet file swapping, the issue of hardware and software - which has both infringing and non-infringing uses - has long troubled the courts on a global basis. Recently, different technologies have faced their scrutiny: since 2000 a number of cases have been focused on peer-2-peer file swapping on the Internet, but manufacturers and others who provide, produce, write and manufacture software and/or hardware capable of copyright infringement, have also found themselves at the receiving end of lawsuits.

In 2003 the Motion Picture Association of America (MPAA) launched an action in the High Court of England & Wales against 321 Studios - which produces software which allows the copying of DVDs by consumers. The MPAA has already filed an action in the US (December 2002) seeking to prohibit the sale of 321 Studios' software titles DVD X Copy and DVD Copy Plus. The MPAA also wants any profits from sales as recovery of damages.

321 Studios says it has sold a total of 150,000 copies of the two software titles and 321 Studios insists that its software does not violate the Digital Millennium Copyright Act (DCMA) in the US which outlaws providing information or tools to circumvent copy-control technology. At the same time the movie studios are using the DMCA against a software package produced by Tritton Technologies. The studios have filed a suit in a Manhattan court to block the sale of DVD CopyWare which allows DVD owners to backup their DVD collection to DVD-R media.

Also named in the suit are three website hosts selling the software. Paramount and Twentieth Century Fox both maintain that Tritton's software will allow mass copying of DVDs by circumventing the built-in Content Scrambling System (CSS) encryption present on most commercially produced DVDs. But Tritton maintains its innocence - pointing out that the software can only be used to backup legitimately owned DVDs, a right guaranteed to software owners years ago, by the courts.

In a similar vein, US satellite transmission giant DirecTV has launched a nationwide campaign of cease and desist letters and filed nearly 9,000 federal lawsuits in response to the purchase of smart card readers, emulators, loopers, reprogrammers, bootloaders, and blockers. The Electronic Frontiers Foundation (EFF) add this to the debate:

Satellite TV giant DirecTV has sent ominous letters to an estimated 100,000 individuals, accusing them of purchasing "pirate access devices" and threatening to haul them into court for stealing television channels. The letters tell the unlucky recipients that the prospect of an expensive legal battle will go away if they pay up, usually to the tune of $3,500. Yet, in too many cases, the targets of the letters never intercepted DTV's signal; they're only guilty of owning smart card technology. This dragnet is catching innocent security professionals, hobbyists, and entrepreneurs. Without proof of a violation of law, DTV's unsubstantiated threats to sue are an abuse of the legal system (Electronic Frontiers Foundation Newsletter,16th August 2003, Vol.16, No.21).

Clearly it is arguable that smart card readers and their various derivatives do have legitimate uses, including computer security and scientific research.

But it is the Recording Industry Association of America's (RIAA) actions against individual file swappers in the USA which have really grabbed the headlines. Having fought to obtain subscriber and user details from the likes of cable provider Verizon and Universities who offer their students internet access (see below), the RIAA filed 261 lawsuits against individuals who the RIAA claim are 'chronic' abusers of internet download services (9th September 2003). US Copyright law allows for damages of up to $150,000 per track infringed although the RIAA have said they are open to offers of settlement from the individuals concerned.

The Globe and Mail (10th September 2003, www.globeandmail.com reported the story of how twelve-year-old Brianna Lahara's love for TV theme songs, Christina Aguilera and the nursery song If You're Happy and You Know It made her a target of the multibillion-dollar U.S. recording industry. Brianna, a user of KaZaA, promised never again to share songs over the Internet and her mother agreed to pay $2,000 (U.S.). The RIAA issued a statement announcing that Brianna's mother had settled for $2,000 and quoting the little girl as saying: "I am sorry for what I have done. I love music and don't want to hurt the artists I love." Ms. Torres added, "We understand now that file-sharing the music was illegal. You can be sure Brianna won't be doing it any more."

Several groups are organising to fight the RIAA and help those being...