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March 09, 2004
Victory for EFF Creates Problems for EFF's Filesharing Solution
WIRED is reporting that a Pennsylvania Federal judge has ordered the RIAA lawsuit charging 203 Comcast subscribers with copyright infringement be broken up into 203 separate lawsuits (One File Swapper, One Lawsuit). Read EFF's press release, which goes into a little more detail and provides updates on other similarly situated cases in other jurisdictions (Case Update: Pennsylvania Court Orders Record Industry to File 203 Separate Lawsuits).
This is certainly a victory for the rights of those accused of copyright infringement, providing a high degree of protection to those who may have been falsely accused. It also greatly complicates the ability of copyright owners to prosecute wide spread infringement and places a greater burden on our court system. A reasonable tradeoff, but it also has other effects as well. For example, it also makes it almost impossible to enforce EFF's voluntary collective music licensing scheme on an individual basis (A Better Way Forward: Voluntary Collective Licensing of Music File Sharing).
As I discussed in my initial comments on EFF's white paper, the greatest problem with the proposal is that the enforcement mechanism is weak (Thoughts on the EFF P2P Solution White Paper). In short, why would the majority of filesharers pay $5/month when they can get everything free from the minority of people who do pay? This latest victory, however, makes EFF's position virtually impossible to enforce on an individual basis. What this means is that, unless an ISP or college or similar organization buys a blanket license for its customers, there will be no way to tell who is an authorized filesharer without initiating an individualized lawsuit.
Here's an example: Filesharer A belongs to an ISP that does not force a blanket EFF-style voluntary license on its customers. Therefore, Filesharer A (a pretty good guy) buys an individual license from whatever organization provides them and begins filesharing via the ISP. However, using the same ISP is Filesharer B, who thinks copyright is for the birds and does not buy a license. Since the ISP uses dynamic IP addressing, how in the world will the licensing organization know (since Filesharer A and B can use whatever software they want) which is licensed and which is not? The licensing organization could ask the ISP, but the ISP will tell them that they won't violate their customer's privacy. Under the Pennsylvania decision, the licensing organization would have to launch two lawsuits to determine the identity of the illicit filesharer. Of course, one of the lawsuits would be bogus and quickly dropped by the licensing organization, but what a waste of time and effort. Multiply this situation by a few thousand, at least. Does EFF's enforcement mechanism in their white paper make any sense?
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