Net music pirates face lawsuits

The Recording Industry Association of America (RIAA) is putting the legal squeeze on Web site operators in its ongoing effort to crack down on music pirates who illegally distribute tunes over the Net.

The RIAA has filed two suits alleging that two music archive sites were distributing full-length songs without permission, which violates federal copyright law. The trade group is seeking permanent injunctions and damages that could reach into millions of dollars.

It also is looking to send a message to Netizens that it is coming down hard on all manner of music piracy--whether or not the culprits profit from the music's distribution.

One suit was filed in U.S. District Court in Arizona, and names the site operator, Fred Cohen, as well as Internet service provider Arizona Bizness Network, based in Phoenix. Cohen, 20, a junior at Arizona State University, is the systems administrator for the ISP. There were about 50 songs posted on his site, by artists such as Nine Inch Nails, the Cure, and New Order, Cohen said.

The other suit was filed in U.S. District Court for the Western District of Washington, against a site operator who the RIAA alleges posted more than 1,100 songs.

Copyright has been a thorny issue where the Internet is concerned, and the music industry is greatly affected because of its high profile and the vast sums of money involved.

Along with ever-evolving technology and increasingly tech-savvy fans, the industry has had to contend with the Net's "information-wants-to-be-free" environment. Though the Net has the potential to offer an array of new marketing, sales, and distribution opportunities for the industry, it also poses a tremendous threat to copyright holders.

"The music industry is concerned with keeping the Internet as piracy-free as possible to keep it open for legitimate business," said Steve D'Onofrio, RIAA executive vice president and director of antipiracy.

On the flip side, many of the fans who operate the music archive or MP3 (MPEG 1, Audio Layer 3) sites say they are trying to help market their favorite artists and since they are not profiting from the downloads of songs, they should not be targeted as copyright violators.

Cohen is one such fan. "I never understood why they want to enforce those copyrights when it doesn't hurt them. It was great advertising for them," he said. "My site was mostly songs [that the record labels] weren't marketing themselves. Plus, I had links to record stores so people could buy the albums.

"I was never trying to take away sales or screw the record companies," he added, noting that according to a poll on his site, more than half the people who listened to songs on his site followed the links to stores and bought CDs.

But whether a broadcast is tied to a sale is not relevant in terms of the necessity to license copyrighted materials, according to Marc Morganstern, senior vice president of new media for the American Society of Composers, Authors, and Publishers (ASCAP), a nonprofit licensing organization that represents copyright holders.

"The bottom line is, a performance is a performance is a performance on the Internet," he said. "All performances warrant a license. It's about making sure the little guy [artists, publishers, and composers] get paid for their work.

"Web site operators have to realize this is the livelihood of the artists and copyright holders," Morganstern added.

Furthermore, RIAA's D'Onofrio added, "It's up to the industry to decide how and where to distribute and market their products. The issue is whether [the defendants] had the authority to do what they did, and clearly they didn't."

Both suits were filed May 5, after the RIAA sent cease-and-desist letters to the site operators, according to Steven Fabrizio, senior vice president and director of civil litigation for the trade group. Temporary restraining orders were issued. Fabrizio said the Washington defendant yesterday agreed to a preliminary injunction until the hearing, and the RIAA was "in discussion" with the Arizona defendants for the same thing.

Fabrizio said it is too early to specify the dollar amount of damages it will seek, but he noted that the RIAA will ask for the "maximum statutory damages": $100,000 per infringement, or per song. He added that currently the RIAA is looking at 13 infringements in the Arizona case and 7 in the Washington case, but those numbers are subject to change.

In the Arizona case, both Cohen and the ISP are named in the suit because "the people operating the site were also the people providing the access," Fabrizio said. Sean Roe, owner of the Arizona Bizness Network, denied knowing what Cohen was doing.

The issue of whether Internet service providers should be responsible for the content their customers post is another point of contention among players in the copyright arena. In some situations, ISPs have not been held accountable for the content on their sites--such as the $30 million libel suit filed by a White House adviser against Web columnist Matt Drudge and America Online, which hosted the column. The suit is still pending, but AOL was absolved of responsibility.

Copyright is a different matter, however, Fabrizio noted.

"We sue the Web site operators for the direct culpable conduct," he said. "We have never sued an Internet service provider for the provision of services. But under copyright law there is still liability" for service providers.

Currently in the Senate is the Digital Millennium Copyright Act, part of its "High-Tech Week" agenda. That bill combines aspects of the Online Copyright Infringement Liability Limitation Act and the WIPO Copyright Treaties Implementation Act to expand the copyright protection of online software, literature, and music. However, it would limit ISPs' liability for infringements made by their customers.

The RIAA in January settled its first Net copyright suit for more than $3 million, and the trade group agreed to forgo collecting the damages unless there is a future infringement, Fabrizio said. It will not do the same thing this time around, he added, nor will it waive collection in future cases.

"There is essentially no defense for what they have done," he said. "There is no Internet site that is off our radar screen. It doesn't matter if it has 5 songs or 5,000 songs, if it is a Web site or FTP site, if it is commercial or noncommercial--all of these sites are engaged in unlawful activities and all are subject to these kinds of lawsuits."