A Push in Law Schools to Reform Copyright; New York Times, 12/1/09

Nazanin Lankarani, New York Times; A Push in Law Schools to Reform Copyright:

"Since 2007, U.S. university students have been a prime target of a litigation campaign by the Recording Industry Association of America, or R.I.A.A., the music industry trade group that has found university campuses to be hives of file-sharing activity.

“The music industry is acting like a digital police force,” Charles Nesson, a Harvard law professor who defended Mr. Tenenbaum at trial with the assistance of law students, said in a phone interview from Boston. “Academia must get involved, to bring fairness to the process.”...

A report in June by the analysis firm Forrester Research said that 27 percent of peer-to-peer, or P2P, network music sharers in the United States last year were in the 18 to 24 age group and 43 percent in the 25 to 34 age group. File sharing, a largely clandestine activity, is hard to measure, but Forrester said that, based on admitted cases, it estimated the number of file-sharers, as a percentage of all Internet users, to be two to three times greater in Europe than in the United States.

“Downloading is so easy, and there is so much free content on the Internet, it is hard to distinguish between illegal downloading, streaming free content and copying from a friend’s laptop,” said Rana Nader, a recent law graduate of Université Panthéon-Assas, in Paris, who also has a law master’s degree in multimedia and information technology from Kings College in London.

“When the product is digital, it does not feel like stealing,” said Ms. Nader.

In the past decade, peer-to-peer technology companies have mutated endlessly and rapidly in cyberspace, becoming increasingly difficult to police.

In the 10 years since Napster first offered its P2P service, the ability to create, access and swap music in user-friendly MP3 format has revolutionized the music industry for a generation of musicians, producers and consumers.

But along with ease of access has come legal uncertainty and risk.

“Internet has helped develop new forms of amateur entertainment,” said Mr. Nesson. “You no longer need a ‘label’ to put out a good song. Soon, we will not be able to tell what is copyrighted and what isn’t. That is why defining the limits of copyright and public right is fundamental to the development of cyberspace.”

Law school teachers are active participants, in classrooms, in the courts and before legislative assemblies, in the debate on how to reform laws often dating from the age of vinyl.

“File sharing is the way music is accessed today,” said Daniel Gervais, professor of international intellectual property law at Vanderbilt University in Nashville, Tennessee. “Our students ask, ‘Why can’t we continue to do it, but pay for it?”’

Last August, Mr. Gervais, who is also affiliated with the University of Ottawa in Canada, received funding from the Ontario Province government to propose changes to Canadian copyright law to meet the needs of users of copyrighted material. Fifteen students are helping him to complete the project.

“We are making ourselves heard by the legislature and the courts,” Mr. Gervais said.

For law students, digital copyright has become a hot topic. “Since 2008, our annual seminar on music and digital copyright has been more than full,” Mr. Gervais said. “Students all file-share; they are all on Facebook and Twitter. Copyright is connected to their own reality.”

One idea under study is to assess a global license fee, to be collected and paid by the Internet service provider, permitting unlimited media usage. This approach “has wide support here,” he said.

The fee would be levied by the service providers as a voluntary flat tax, payable by customers who accessed music online via file-sharing networks, and would be earmarked for artists or other rights holders, replacing royalties. Effectively, that would turn the service providers into the online equivalent of royalty-collection societies like Broadcast Music Inc., a U.S. music performing rights organization, or its British, Dutch, French and German counterparts, which for years have collected fees for artists from radio stations, bars, clubs and other performance venues.

“If you add all the monthly fees collected in all major music markets, you could get a total above $20 billion a year, which added to other revenues from ticket, merchandise and other sales would match or surpass the music industry’s best years,” Mr. Gervais said.

Yet, if some academics and lawmakers are looking at ways to legalize the sharing of copyrighted digital material for noncommercial use, others prefer the opposite tack of more draconian punishment for “music piracy.”

French lawmakers have opted in particular to criminalize music file-sharing.

“To impose a global fee is problematic,” Frédéric Pollaud-Dulian, a professor at University Paris I Panthéon-Sorbonne and a specialist in media law, said in a telephone interview. “Not all Internet users download copyrighted material. Also, to allow open access to copyrighted material deprives the copyright holders of control over their own work.”

The prevailing view in France, Professor Pollaud-Dulian said, remains that existing law should not be overhauled simply because new customs and practices, however widespread, do not fit. So, copyright laws should not be adjusted simply because people are using new technology to access music.

“We teach our students that illegally downloading music is a threat to creativity,” Professor Pollaud-Dulian said. “The work of an artist has monetary value. Being a musician is not a hobby.”

In October, the French Constitutional Council cleared the way for a controversial bill, known as Hadopi II, that empowers French courts to temporarily cut off the Internet access of copyright infringers or of individuals who fail to protect their broadband access line against illegal downloading.

“When you violate driving laws, your car is taken away,” said Mr. Pollaud-Dulian. “If you do not abide by hunting rules, your rifle is taken away. To say that depriving a user of Internet access infringes on a fundamental right is pure fantasy.”

Others view the loss of Internet access rights as an excessively punitive measure that violates a basic right, and a trademark of repressive regimes.

“In a democratic society, you need Internet access to participate in the sociopolitical process,” said Mr. Gervais. “Without it, you have less active and less informed citizens.”

According to Andrew Murray, a reader in law who specializes in cyberregulation and information technology law at the London School of Economics law department, the British government is consulting with law professors on a different version of the “three-strikes law.”

“We are looking at a measure where Internet access would be filtered or the user’s bandwidth cluttered to prevent downloading of copyrighted material,” said Mr. Murray, who also acts as an advisor to Creative Commons, a licensing organization created by Lawrence Lessig, a Stanford Law School professor, that allows copyright holders to extend licenses to users.

Meanwhile, Mr. Nesson and his team of law students are preparing to appeal the judgment against Mr. Tenenbaum. — up to the Supreme Court if need be.

“If you are selling water in the desert and it starts to rain, what do you do? Go to the government and get them to ban rain, or do you sell something else?” Mr. Nesson said."

http://www.nytimes.com/2009/12/02/business/global/02iht-riedmedia.html?scp=1&sq=copyright%20reform&st=cse