Professor, lawyer weigh in on debate over file-sharing lawsuit

It only took University students a few hours to react to charges of copyright infringement against sophomore Dan Peng.

By Thursday afternoon, campus network search engines Wake, Gank, Sleep and pTunes were all absent from their normal locations, and students who had previously shared thousands of songs and hundreds of movies had removed their collections from public view.

If the Recording Industry Association of America intended to scare students into compliance with copyright law, it seems their effort may have succeeded.

"The RIAA really wants to send a frightening message," wrote David Dobkin, chair of the computer science department, in an email. "These students (Peng et. al.) are being set up to scare others away from doing this."

In fact, the scale of the lawsuit leads some to wonder if the RIAA actually expects to collect damages. "The amount of money they are asking for is larger than the entire profit of the record industry in one year, and perhaps in its entire history," said Fred von Lohmann, senior staff attorney at the Electronic Frontier Foundation. "It's ridiculous to think you can get that out of one person."

The suit against Peng includes two claims. The RIAA alleges that Peng committed direct copyright infringement by distributing copyrighted music files from his personal computer. It also claims that Peng engaged in contributory infringement by maintaining the Wake service, which facilitated music theft by others on a larger scale than would have otherwise been possible.

The direct infringement charges are easily proved or refuted with network traffic records, but the contributory infringement law is open to interpretation, von Lohmann said.

The RIAA must establish three facts to support their contributory infringement claim.

First, they must establish that some direct infringement occurred, for example, that users illegally exchanged copyrighted music across the network.

Second, they must show that Peng was aware of, or should have been aware of, the direct infringement.

Third, they must show that the Wake site materially aided the direct infringement, in that it made it easier for users to find and illegally download copyrighted music.

According to von Lohmann, the second point will be the hardest to establish. One of the results of the lawsuit against the Napster music-sharing program in 2001 was a legal description of what it means to know about incidents of direct infringement on a network.

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"Somebody needs to tell you that infringement is going on," von Lohmann said. "In this case it appears that the recording industry hadn't notified Princeton or Mr. Peng [about copyright violations as a result of Wake searches] so there is an open question as to whether the [RIAA] filled the requirements of the 'Napster' ruling."

Because of the flaws he sees in the RIAA's contributory infringement argument, von Lohmann said he would love the opportunity to try Peng's case. The EFF has already been in contact with several of the students named in the latest RIAA suits, though he could not confirm whether Peng was one of them.

Though the Napster case will likely be cited as precedent by both sides if Peng's case ever goes to trial, there are important differences between the Wake and Napster services.

Napster required users to actively sign on for the sole purpose of sharing music files, while Wake required only passive involvement of its users. Peng's site searched the preexisting campus network for any shared files, cataloging anything and everything it found along the way.

One source familiar with file-sharing law, but who would not be named because of a possible conflict of interest, said, "It seems pretty clear that the [Wake] site is a search engine. It looks to me like a search engine."

Von Lohmann suggested that the courts should be careful not to "throw out the baby with the bathwater" by removing sites like Wake which offer valuable, non-infringing services.

"You can imagine people sharing research materials or term papers or photographs that they themselves have taken. There is no limit to the kinds of stuff you can share [legally]," he said.

According to the file-sharing expert, one of the outstanding questions about the case is how the RIAA intends to substantiate its claims of direct infringement. To support these claims, the RIAA must show that users illegally downloaded copyrighted music from shared folders on the campus network. But it is unclear how the RIAA could have obtained such information without being attached to the campus network itself, the source said.

Even if they were inside the network, it is not clear that they could have obtained that sort of information, the source said.

Perhaps the most damaging aspect of a trial would be the discovery phase, in which both sides are allowed to interview witnesses and gather evidence. It is possible that the log files on the Wake server will contain lists of searches conducted by its users and that these lists could be used as ammunition for future legal actions. "There is nothing you can do having already accessed the site," the source said.

So far, the RIAA has taken action only against those who have created tools that they believe aid music piracy. But it is possible that if, in a few years, the file-sharing problem worsens, the association will resort to filing suits against individuals solely for direct infringement.

However, it is not clear that a trial would have any longterm impact on the use of peer-to-peer file-sharing systems.

"More Americans are using file-sharing [technology] than voted for the president," von Lohmann said. "The answer is to make sure artists get paid while making file-sharing legal."