Academic journal article The Review of Litigation

Unenforceable Copyrights: The Plight of the Music Industry in a P2P File-Sharing World

Academic journal article The Review of Litigation

Unenforceable Copyrights: The Plight of the Music Industry in a P2P File-Sharing World

Article excerpt

I. Introduction 397

II. Litigation against P2P providers 401

A. Secondary Liability Prior to P2P Litigation 402

B. Napster, Grotsker, and Doctrines of Secondary Liability 402

III. Deterring Illegal File Sharing by Targeting Direct Infringers 405

IV. Cost-efficient Legal Strategies Against Individual Infringers 408

A. The Mass Litigation Model 409

B. Procedural Road Bumps to Mass Litigation

Strategies 411

1. Proper Joinder of Parties 412

2. Proper Class Certification 414

3. Defenses Available to Defendants 417

C. Possible Benefits of Mass Litigation Strategies 418

V. The State of the Music Industry and P2P File Sharing and Possible Solutions 420

A. Private Collective Action Entity 422

B. Licensing with ISPs as Opposed to P2P Providers 423

VI. Conclusion 426

I. Introduction

The advent of the Internet and digital music allowed for the reproduction and distribution of music without any loss in quality. The creation of peer-to-peer (P2P) software facilitated free sharing of digital music on the Internet. Consequently, the Internet and the rise of digital music threaten to turn music into a public good.1 Today, the consumption of music online by one person does not reduce the availability of that same music to others.2 In addition, it is difficult-if not impossible-to prevent anyone from consuming music on the Internet free of charge.3 Though actual losses in terms of revenue from music sales have been difficult to quantify, the steady decline in music sales has coincided with a sharp increase in P2P file sharing.4

In an effort to curb this threat, the music industry, led by the Recording Industry Association of America (RIAA), launched a fullscale litigation campaign against both P2P providers and individual file sharers. Yet, in a little more than a decade, the music industry has failed to make any real progress in its attempt to stop illegal file sharing. Early successes against the creators of P2P file-sharing programs in the Napster and Grotsker cases did little to halt or even slow the creation of additional P2P providers.5 Similarly, the RIAA's relentless campaign to hold individual users of P2P programs liable for infringement has failed to serve as an adequate deterrent to illegal file sharing.6

Newer strategies that involve bringing mass lawsuits through joinder and reverse class actions will do little to solve the problem. In theory, these actions allow the copyright owner to bring suit against many defendants at one time and thereby achieve greater judicial efficiency. However, in practice, plaintiffs face a number of procedural problems, including identification of infringers, jurisdictional issues, and requirements for joinder and class actions.7 Additionally, mass lawsuits and litigation against individuals generally have and will continue to result in high reputational costs for the music industry. Finally, even in cases where copyright owners successfully maintain a joinder suit or a class action against alleged infringers, the likelihood that the suit will actually deter illegal File sharing by users other than those that are party to the suit is slim. The reality is that there are millions of infringers throughout the world spanning a multitude of jurisdictions.9 Therefore, a lawsuit against hundreds-or even thousands-of infringers is unlikely to have a strong impact on online infringement.

This Note traces the music industry's litigation campaign, led by the RIAA against P2P providers and individual users, to end illegal File sharing. In doing so, this Note illustrates the inability of copyright litigation to properly enforce infringement on the Internet. Because it is practically impossible to deter illegal downloading, the music industry must now focus on ways to monetize online music consumption. Widespread Internet access, File sharing, and social media have changed the ways in which people discover and enjoy music. …

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