Maryland Bar Bulletin
Publications : Bar Bulletin : May 2005

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Share And Share Alike?
By Tom Breihan

“What the record industry has decided to do is basically wage a war on infringement, and that war includes consumers,” MSBA Entertainment & Sports Law Committee Chair Cheryl Slay explained to the crowd assembled for a public law forum presentation entitled “Downloading Music and Entertainment – What Every Consumer Should Know”. Cosponsored by the MSBA’s Entertainment & Sports Law Committee and Public Awareness Committee (PAC) and open to the general public, the presentation was intended to educate the public about the legal issues associated with downloading.

Slay

The combination of consumer activity and the possibility of making a lot of money means that people care about this.
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Cheryl Slay

It's likely that there will be some sort of middle ground that the Court will find.
Jonathan Holda -

Holda

“We try, as a committee, to select topics that we think are timely and that the public needs to have information about,” says Adam Sean Cohen, who Co-Chairs the PAC with Robert D. Anbinder. “We felt it was something that would generate interest. The public doesn’t realize that some of the things that they do in this area are illegal.”

Peer-to-peer (P2P) trading became a hot-button issue in the late ’90s, as the now-defunct Internet service Napster allowed its clientele to freely and illegally trade music with one another. In 2001, the Ninth Circuit Court of Appeals of California found that Napster, Inc., was in violation of copyright law and ordered it to shut down. Guest speaker Jonathan Holda, an intellectual property attorney with Ober Kaler, explained that Napster’s downfall was its centralized server, which allowed the Recording Industry Association of America (RIAA) to prove that the company had knowledge of its clients’ infringement and that it was aiding this infringement. Since then, a number of similar services have emerged without Napster’s readable centralized databases, and many of them have been shut down by court decisions. Aimster, a similar service, allowed clients to trade files through America Online’s instant messaging service, purposefully encrypting the data of its files so that its administrators would be unable to tell what files were passing through its system. The U.S. Court of Appeals ordered Aimster to shut down in 2002.

The day before the forum the Supreme Court heard arguments in the case of MGM v. Grokster, Holda explained. Grokster, a service similar to Napster, had no centralized index of downloadable material, and its lawyers argued that the service had legitimate uses; professors could send one another educational materials and recording artists hungry for publicity could generate attention by sending their own music directly to interested consumers. The Grokster lawyers held up the precedent of the so-called 1984 Betamax case, Sony v. Universal Studios, in which the Supreme Court ruled in favor of Sony, allowing it to continue manufacturing VCRs despite their infringing capabilities, since the devices had substantial legitimate uses. For their part, the lawyers for MGM argued that the potential infringement was the basis for Grokster’s entire business model.

Holda reported that Court justices seemed skeptical of both sides during the hearing. “It seems to me that it’s likely that there will be some sort of middle ground that the Court will find,” he told the crowd.

Slay focused her presentation on the legalities of downloading as they exist now, explaining that the music industry considers P2P downloading to be a tremendous threat to its extraordinary profits. “The combination of consumer activity and the possibility of making a lot of money in this industry means that people care about this,” Slay noted. Addressing the general public, Slay explained that the RIAA has sued over 7,000 individuals – often students – for making use of P2P services, and that the organization was attempting to send a message to consumers in general by encouraging huge numbers of settlements.

In addition to being an entertainment law attorney, Slay is a musician herself; she recorded an album of R&B songs and traditional hymns last year. After the forum, she explained that her views on P2P downloading aren’t identical to those of the RIAA. “I think it’s a really good opportunity for artists to act basically as their own label and use the Internet as means of distribution,” she said. “I have the opportunity to get my music out there. I think that there’s less concern for unsigned artists about infringement just because not that many people are probably going to do it.”

On an issue as volatile and potentially costly as that of P2P downloading, the public needs all the information it can get, and those in attendance were treated to an informative and engaging public law forum.

“Our goal is to provide information to the public; we do it as a service,” notes Cohen. “It was a success because we shared knowledge with people who were seeking it.”

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Publications : Bar Bulletin: May, 2005

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