A Legal Matter: Peer-to-Peer File Sharing, the Digital Millennium Copyright Act, and the Higher Education Opportunity Act: How Congress and the Entertainment Industry Missed an Opportunity to Stem Copyright Infringement

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"Only one thing is impossible for God: to find any sense in any copyright law on the planet."--Mark Twain (3)

I. START ME UP: (4) AN INTRODUCTION TO HIGHER EDUCATION AND PEER-TO-PEER FILE SHARING

A palpable tension has existed between higher education and the content industry since the advent of peer-to-peer ("P2P") file sharing software. There have been several attempts by both higher education and the entertainment industry to negotiate a workable compromise, including the Joint Committee of the Higher Education and Entertainment Communities Technology Task Force (5) and the Digital Citizen Project. (6) Alas, no compromise was ever achieved. The P2P file sharing regulations included in the Higher Education Opportunity Act ("HEOA") are the latest chapter in a story of an industry that has pressured colleges and their students, as well as an amenable Congress, to force higher education institutions to act against illegal file sharing and the technology that supports it. The unfortunate result of more than a decade of struggle over the issue is legal requirements that will create some additional work for colleges, but do little to stem the problem of illegal file sharing.

The only constant about both music and technology is change. For hundreds of years, songs were passed down orally from person to person, and later through sheet music. Only recently have sound and video recordings been mechanically or digitally captured to be shared the world over. For much of that relatively brief time, individuals could listen to the music captured on the recorded medium (e.g. phonograph records), but had no power to change the recording, what Professor Lawrence Lessig referred to as the ""Read/Only' ('RO') culture."' (7) Those who held the copyright and controlled the rights to music could manufacture and sell as many records as desired (or as the market would support), confident that one would need the record to listen to the music. That is, even though buyers could resell or trade the record, once they did so, they no longer possessed that original record,s

A. Video Killed the Radio Star9

The world changed somewhat with the advent of recordable tape. Around the time that the Buggles' Video Killed the Radio Star (10) kicked off Music Television (MTV) (11) in August 1981 for a changing music audience, individuals acquired the ability to record and share music, albeit rudimentarily at first. This process became easier as blank tape prices plunged. In fact, Congress legalized the consumers' right to make non-commercial recordings of music, including recording songs played on the radio onto cassette tapes.12 The quality of these second and third generation recordings improved as music fans began to record tapes from compact discs ("CDs") for trade or resale. The concomitant harm to this technological advance was that recording companies, and the musicians who rely on sales to make a living, saw diminishing profits due to sales or trades of dubbed recordings. The way that society listened to music was changing as well. Music had generally been consumed in groups until the early 1980s when consumers plugged headphones into a new device from SONY called the "Walkman" and, for the first time, enjoyed a solitary experience listening to music they chose themselves. (13) Just shy of twenty years after Video Killed the Radio Star's debut, a college sophomore began the process of "Digital Kills the Compact Disc Star." The digital music revolution began on June 1, 1999, when nineteen year old Shawn Fanning shared the beta version of his Napster software. Within a few days, an estimated 10,000 to 15,000 people had downloaded the file-sharing software.

B. I Fought the Law (and the Law Won) (14)

The recording companies, which had become accustomed to high margins from CD sales by multiplatinum artists, (15) were not pleased, and Napster, at least in that incarnation, was not long for this world. …