The twisted path of the music file-sharing litigation: the cases that have shaped the litigation and the RIAA's litigation strategy.(Recording Industry Association of America)

As the legal campaign to stop illegal file sharing has progressed, it has become increasingly apparent that the impact of the campaign reaches far beyond Joe Teenager barricaded in his room downloading the hottest new songs before CDs even hit the shelves. What was first viewed as a publicity stunt or scare tactic has progressed steadily over the past two years into nightmares and sleepless nights for higher education and corporate administrators, CEOs, and technology officers, and rightly so. Fueled by the recording industry giants that collectively comprise the Recording Industry Association of America (RIAA), the RIAA has launched a massive campaign against individuals engaged in sharing music files via the Internet that to date has ensnared at least 3,400 people. Although no case against an individual has yet been brought to trial, the decisions rendered thus far illustrate that corporate and higher education officials need to be concerned with the use of the organization's technology. As the file-sharing litigation has revealed, the RIAA is quick to adapt its approach to the litigation, and its current targets are colleges and universities. However, nothing prevents the litigation from extending to any large organization that maintains a computer network.

The Twisted Path

Although recent lawsuits have targeted individuals engaged in file sharing, the initial offensive volley in the RIAA campaign was an attempt to deal a knockout blow to the technology and services that made file sharing possible. This approach to litigation has been attempted nearly every time that a new technology has made reproduction of copyrightable works easier or less costly. (1) Typically, each legal challenge to new technology is matched with a lobbying effort in an attempt to extend the provisions of the Copyright Act (2) to protect the monopolies upon which the new technology intrudes. Technology always outpaces legislation, and in the interim, affected industries invoke the protection of the courts when new technology challenges the very business model upon which the industry is founded. For example, the seminal case regarding the fair use doctrine, Sony Corporation of America v. Universal City Studios, Inc., was a lawsuit brought by the owners of copyrights in television programs against manufacturers of Betamax home video tape recorders, the predecessors to VCRs. (3)

In Sony, the aggrieved copyright owners brought a copyright infringement action against the manufacturers of home videotape recorders seeking to stop the sale of home videotape recorders to the general public. The television studios argued that the manufacture or sale of such equipment to the general public constituted contributory infringement of the studios' copyrights. The studios argued that the sale of technology capable of recording television shows with the constructive knowledge that the purchasers would use the equipment to record copyrighted television programs should subject Sony, the manufacturer of the equipment, to liability for contributory infringement. One need only look at the claim brought by the studios to understand that at that point in time, the studios' business model derived profit primarily from advertisers, and viewers were limited to viewing the programs, including the selected advertising, at times appointed by the studios. The invention of home recording technology threatened this business model as viewers would be able to record their favorite programs while away from home and view them at their leisure, fast forwarding through the advertisements or choosing not to record the advertisements at all. The challenged industry attempted through litigation to halt the progress of technology to protect its monopoly while it adapted its business model to profit from the new technology.

The Sony model of litigation was the predecessor to the current wave of file-sharing litigation, and the Supreme Court examined the attempt to halt the distribution of new technology based on the protection of copyrighted works.

The Supreme Court examined the doctrine of fair use, which is the recognition that not every instance of copying infringes a copyright holder's exclusive rights with regard to the recording of television programs for home use. The Supreme Court agreed with the lower court's assertion that:

 
   Whatever the future percentage of legal versus illegal 
   home use recording might be, an injunction 
   which seeks to deprive the public of the very tool 
   or article of commerce capable of some non-infringing 
   use would be an extremely harsh remedy, 
   as well as one unprecedented in copyright law. (4) 

The Supreme Court examined the potential for non-infringing uses, which included taping of sports, religious, educational, and other programming that was authorized to be recorded and thus not infringing. In doing so, the court relied heavily on the testimony of Fred Rogers of Mister Rogers' Neighborhood, who testified that he had absolutely no objection to home taping for a non-commercial use and expressed the opinion that it is a real service to families to be able to record children's programs and to show them at appropriate times. (5) Accordingly, though the court recognized that there was potential to use the devices for infringing uses, the potential for fair uses of the videotape recorders precluded the issuance of an injunction to stop the distribution of the …