Data Sharing and the Digital Science Commons

by: Mustafa Ünlü, Associate Editor, MTTLR

I. The curiously chameleonic properties of data ownership

Image Protein models by Alan Wolf.
Used under a Creative Commons BY-NC-CA 2.0 license.

Data ¹ is both the primary output as well as the most vital input of the scientific process. In fact, data sharing performs such a key role² that without a commons based on publicly shared data, scientific progress would surely suffer.³ In addition, data forms the foundation for downstream commercial applications aimed at privatizing the fruits of the scientific enterprise.⁴ Yet, despite their importance, data ownership rules are subject to a unique, inchoate IP regime which is neither copyright, patent, nor trademark. Moreover, these rules change over time, depending on whether the data has been published. Prior to publication, most data is treated as proprietary and secret.⁵ At this early stage, data sharing is governed by informal norms, which are enforced, if at all, under a minimal, liability rule-based legal infrastructure.⁶ After publication, data loses its protected status and becomes a part of the public domain. At this later stage, data sharing comes under a default rule of open and free access.

The Supreme Court has confirmed that copyright does not, and was not meant to, protect published data.⁷ The Court's rationale rests on principles that uphold the commons. “The very object of publishing a book on science or the useful arts is to communicate to the world the useful knowledge which it contains. But this object would be frustrated if the knowledge could not be used without incurring the guilt of piracy of the book.”⁸ In spite of the commitment to open access after publication, post-publication privatization inevitably leads to interactions between upstream data sharing and exclusive IP rights.⁹

II. Data sharing under stress

This unique data ownership IP regime, which has arguably been in place for centuries,¹⁰ is coming under increasing pressure in two separate ways. The rate at which the commons is becoming privatized is decreasing the incentives to share, while the data itself, due to the growing size and complexity of outputs, is becoming harder to disseminate. Scholars have noted that accelerating commercialization of downstream inventions has undermined informal sharing norms for unpublished data.¹¹ At the same time, technological advances have caused “fundamental shifts in the practices and structures of scholarly communication”¹² as data has “become more complex, more extensive, more elaborate [and] more community-based.”¹³ These disparate sources of stress have combined to bring about a “sea change” in the “nature of biological inquiry” and scientific norms related to data sharing.¹⁴ As a result, the science commons has not benefited from the Internet-enabled efficiency gains which have brought about tremendous advances in the applied technology and commercial spheres such as those attained by Google in its search engine implementation.¹⁵

This post limits itself to analyzing the liability ramifications of a technological solution to the second problem – that of burgeoning datasets of increasing size and complexity (“BDISCs”) as obstacles to scientific progress. A digital infrastructure that allows wide-spread sharing of BDISCs throughout the scientific community may contribute to the future shape of the commons in ways that go beyond simply fixing the problem at hand by causing the scientific community to reconsider and revamp the rules of data ownership in both the pre- and post-publication stages, but that subject matter is better left for exploration at a later time.

III. Tranche: A peer-to-peer (P2P) data sharing solution to the BDISC problem

Though certain specialized disciplines have already implemented norms of data sharing, enforced by either journal editors or policy guidelines,¹⁶ technological solutions for enabling access to and propagating BDISCs have lagged behind. Thus, at the cutting edges of research, in areas such as genomics and proteomics, the BDISC problem is the most severe. Such projects are growing more complex and interdisciplinary and are generating increasingly larger and richer datasets.¹⁷ It is here that the scientific community's need to share, access, and annotate data is the greatest.

In the proteomics arena, one technological solution to this problem has been to deploy a novel, P2P based network for data sharing.¹⁸ Tranche combines the sharing efficiency and scalability of a BitTorrent network with a secure, encrypted storage system that allows data owners to retain control of disclosure.¹⁹ As a free, open source tool, Tranche has gained acceptance in the community and, as of this writing, is hosting several thousand proteomics-related datasets.²⁰ It is worth adding that though Tranche was developed to address problems of data sharing in the proteomics context, the solution it embodies should be generally applicable across all scientific disciplines.

Tranche promises to enhance and change the manner in which the science commons is constructed. It enables temporal persistence of large-scale data and its associated identifiers and annotations, a very desirable improvement which is otherwise challenging to implement under the traditional print-based data sharing systems. It allows instant and widespread data sharing and gives the data owner the ability to choose from various licenses under which data is shared.²¹ Content owners can further control access by selective distribution of decryption keys and allowing access to either the entire community or a designated group or individuals. Thus, once granted, access privileges can also be amended over time. In this way, Tranche permits the continued operation of the pre-publication, informal rules of data sharing as well as the post-publication commitment to the public domain. Fully exploring the impact of an infrastructure that allows access to data by the entire scientific community in an immediate, efficient, near-zero cost manner at all stages of publication is, as mentioned, beyond the scope of this post. I will instead end with a brief examination of the liability ramifications of deploying a free P2P network for data sharing.

IV. Liability ramifications of widespread use of P2P scientific data sharing networks

Due to involvement in several high-profile copyright infringement cases (where the operators lost), P2P networks do not currently enjoy a good reputation with content owners.²² One obstacle Tranche faces in gaining widespread acceptance could therefore lie in the perception that it might potentially enable the sharing of infringing content. Liability for Tranche operators would be based on a theory of inducement to infringe, as articulated by the Supreme Court in its landmark P2P decision.²³ Tranche has several features that undercut such an inducement theory. First, unlike the defendants in Grokster, Tranche operators neither advertise nor otherwise encourage infringing activity. In fact, the opposite is true - Tranche is first and foremost a tool to share large datasets. Any sharing activity not related to this primary goal would be unwelcome since it would degrade the network's performance. Tranche is also well-suited to removing infringing content and users (provided that they can be identified) since uploading privileges are granted at the discretion of the operator and may be revoked.²⁴ Finally, in a long line of cases involving technological tools capable of being used in a non-permissible manner, courts have recognized that liability does not attach to the developer of the tool “if the product is widely used for legitimate, unobjectionable purposes. Indeed, it need merely be capable of substantial noninfringing uses.”²⁵ There is no question that Tranche is not merely capable of such use, but that a substantial portion of its actual use is for legitimate purposes. Therefore, any liability concerns for deploying and/or using Tranche based on its P2P nature should be minimal.

V. A digitalized science commons

The manner in which scientists share data has a vitally important influence on the shape and scope of the science commons. In other words, the commons is shaped both by the rules under which it operates and the technology that enables it. Though existing rules and technology have stayed fairly constant for a very long time, both are under pressure to change from various quarters. Tranche is a P2P solution that utilizes Internet technology to modernize data sharing at a fundamental level. As either Tranche or a similar tool gains widespread acceptance and use in the community, the scientific commons will take a big step towards becoming entirely digital. Even though Tranche fits in with and allows the continued operation of existing rules of data sharing, it also provides more options and flexibility to both producers and consumers of the commons. This, in turn, will also almost certainly require a re-thinking of the rules governing data sharing. Tranche's technological capabilities should allow the community to move with equal ease towards a more market-based model favoring privatization, as advocated by at least one scholar,²⁶ or to stick with and expand upon the commons ideal.

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1. For the purposes of this post, “Data” may be defined as “experimental observations, results and related research methodologies.” See also California Institute for Regenerative Medicine, Intellectual Property Policy for Non-Profit Organizations, 2-3, (PDF)(defining “Data” and “Biological Materials”).
2. Comm. on Responsibilities of Authorship in the Biological Scis., Nat'l Research Council, Sharing Publication-Related Data and Materials, 1, 21 (2003), available at http://books.nap.edu/openbook.php?record_id=10613 [hereinafter Sharing] (“The publication of experimental results and sharing of research materials related to those results have long been key elements of the life sciences.”); John Wilbanks, Cyberinfrastructure For Knowledge Sharing, Ctwatch Quarterly, Aug. 2007, [hereinafter Cyberinfrastructure] (“Knowledge sharing is at the root of scholarship and science.”).
3. Sir Isaac Newton's aphorism “If I have seen further, it is by standing on ye sholders of Giants,” is often quoted as embodying this principle, but the origins of the concept precede him. See Robert K. Merton, On the Shoulders of Giants, 9 (Univ. of Chi. Press 1993), available publicly at http://books.google.com/books?id=o90uC4jMw1EC.
4. Richard R. Nelson, The market economy, and the scientific commons, 33 Res. Pol'y. 455, 457-59 (2004).
5. The exception is large-scale government funded projects with formalized data sharing goals. J.H. Reichman & Paul F. Uhlir, A Contractually Reconstructed Commons for Scientific Data in a Highly Protectionist Intellectual Property Environment, 66-SPG L. & Contemp. Probs. 315, 333-36 (2003).
6. See id. at 349-51 (discussing the legal regime that governs the zone of informal data exchange amongst scientists).
7. See Feist Publ'ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 349-350, (1991) (“[R]aw facts may be copied at will. This result is neither unfair nor unfortunate. It is the means by which copyright advances the progress of science and art.”).
8. Id. at 350, quoting Baker v. Selden, 101 U.S. 99, 103 (1880).
9. David W. Opderbeck, The Penguin's Genome, or Coase and Open Source Biotechnology, 18 Harv. J. L. & Tech. 167, 173-87 (2004) (discussing the various ways recent changes in IP protections effect the biotechnology commons).
10. Sharing, supra note 2, at 27; Cyberinfrastructure, supra note 2 (“[T]his system has served science extraordinarily well over the more than three hundred years since scholarly journals were birthed.”).
11. Rebecca Eisenberg, Proprietary Rights and the Norms of Science in Biotechnology Research, 97 Yale L.J. 177, 177 (1987). Nelson, supra note 4, at 455.
12. Clifford Lynch, The Shape of the Scientific Article in The Developing Cyberinfrastructure, Ctwatch Quarterly, Aug. 2007, http://www.ctwatch.org/quarterly/articles/2007/08/the-shape-of-the-scientific-article-in-the-developing-cyberinfrastructure/
13. Id.
14. Nat'l Research Council, Reaping the Benefits of Genomic and Proteomic Research, 1 (2006), available at http://books.nap.edu/openbook.php?record_id=11487 [hereinafter Reaping].
15. Cyberinfrastructure, supra note 2 (“The materials that underpin [data], are 'dark' to the Web, invisible, and not subject to the efficiency gains we take for granted in the consumer world.”).
16. See, e.g. Sharing, supra note 2, at 4; Lynch, supra note 12 (“[S]pecific communities . . . have established norms, enforced by the editorial policies of their journals, which call for deposit of specific types of data within an international system of data repositories.”).
17. Reaping, supra note 14, at 42.
18. Tranche Project Homepage - Secure Scientific Data Dissemination, http://tranche.proteomecommons.org/, (last visited Aug. 28, 2008).
19. Id.
20. Id.
21. Tranche Project - Quick Start: Uploading Datahttp://tranche.proteomecommons.org/users/quickstart-upload.html, (last visited Aug. 28, 2008).
22. Mark G. Tratos, The Impact of the Internet & Digital Media on the Entertainment Industry, 896 Prac. L. Inst. 133, 234 (2007) (“[W]here peer-to-peer filing sharing companies were once ignoring (and in some cases, promoting) illegal file-sharing, these same companies are scrambling to establish a reputation as friends and advocates of copyright holders.”).
23. Metro-Goldwyn-Mayer Studios Inc. v. Grokster, Ltd., 545 U.S. 913, 936-937 (2005) (“[O]ne who distributes a device with the object of promoting its use to infringe copyright, as shown by clear expression or other affirmative steps taken to foster infringement, is liable for the resulting acts of infringement by third parties.”).
24. http://tranche.proteomecommons.org/users/quickstart-upload.html (last visited Aug. 28, 2008).
25. Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417, 442 (1984).
26. Opderbeck, supra note 9, at 218. (“[A]n open source biotechnology model likely will do little to facilitate long term, significant innovation.”)

The Impact of Comcast's BitTorrent Policy on Network Neutrality

by: Brian Pascal (bhpascal [at] umich [dot] edu), Associate Editor, MTTLR

Imagine buying a train ticket from Ann Arbor to Chicago. Imagine, also, that, upon arriving at the train station, an attendant notices that you are carrying a wheeled suitcase, well within normal size limits. Without examining the contents of the bag, the station attendant politely informs you that your trip to Chicago has a new stopover -- in Texas. He apologizes for the inconvenience, but, in order to ensure a smoother trip for other customers (whom, he claims, dislike walking behind people dragging wheeled suitcases), your trip will be substantially delayed. Worse, this action is not pursuant to any rules or regulations published by the railroad -- it simply happens, and you, without any choice, find yourself on a train heading towards Dallas.

This incongruous situation, absurd in the real world, is all too real on the Internet. A few weeks ago, the Associated Press discovered that Comcast is playing the role of station attendant, targeting a specific type of internet traffic and delaying its delivery.¹ The type of traffic targeted is that which is mediated by the BitTorrent protocol, a method originally designed for the efficient distribution of large files via the Internet while simultaneously distributing the costs of bandwidth and hosting among a multitude of users.² While there exist numerous legitimate uses for BitTorrent, and while it was not specifically created to assist in copyright infringement, the very capabilities that make BitTorrent a powerful tool for creating a robust, self-sustaining network for the distribution of legitimate large files also make it widely used to enable copyright infringement, allowing for the rapid distribution of movies, television shows, and music. For these reasons, legal and illegal BitTorrent traffic accounts for a large percentage of the overall traffic on the Internet (though specific usage data has proven difficult to measure). ³

When the Associated Press published their findings, Comcast's initial response was to flatly deny the allegations, stating that "Comcast does not block access to any applications, including BitTorrent."⁴ Several days later, however, Comcast admitted that it was, in fact, delaying BitTorrent traffic, stating that "[d]uring periods of heavy peer-to-peer congestion, which can degrade the experience for all customers, we use several network management technologies that, when necessary, enable us to delay -- not block -- some peer-to-peer traffic. However, the peer-to-peer transaction will eventually be completed as requested."⁵

This type of action, that of altering the flow of Internet traffic based on content, is merely the latest chapter in the ongoing debate over network neutrality. Tim Wu, a leading scholar in the field, states that "network neutrality is best defined as a network design principle. The idea is that a maximally useful public information network aspires to treat all content, sites, and platforms equally."⁶ Comcast's delaying of BitTorrent traffic is a clear deviation from that ideal, especially considering that it does not even specifically target the illicit uses of BitTorrent, but rather the protocol as a whole. Further, the means by which Comcast accomplishes this is by "impersonating" one of the users connected to the network, sending a signal that is interpreted as a request to stop transmission by TCP/IP, internet communication protocol.⁷

While there are strong normative and economic arguments to be made in favor of network neutrality,⁸ there is another theory, less often raised, that may serve to answer many of these questions under a legal framework -- the doctrine of common carriage. The idea of a "common carrier" dates back to the common law of the 1800's (or perhaps earlier). Generally, "common carriers were 1) required to serve upon reasonable demand, any and all who sought out their services; 2) held to a high standard of care for the property entrusted to them; and 3) limited to incidental damages for breach of duty."⁹ This was not limited strictly to railroad services and shipping conglomerates. "In 1901, following many state courts, the U.S. Supreme Court held that at common law -- i.e., even without a specific statute -- a telegraph company is a common carrier and owes a duty of non-discrimination."¹⁰ This commonlaw theory was instantiated in the United States Code, requiring communications carriers "to interconnect directly or indirectly with the facilities and equipment of other telecommunications carriers,"¹¹ and, moreover, to "ensure the ability of users and information providers to seamlessly and transparently transmit and receive information between and across telecommunications networks."¹²

Read broadly, it seems that ISPs should be included in the set of telecommunications carriers regulated by these laws, and, moreover, to stand as a Congressional mandate of network neutrality; however, they are, generally speaking, not applied to internet connectivity.¹³ Further, current ISPs rely upon a host of economic and non-economic arguments to promote "network diversity," arguing, for example, that the ideal of network neutrality is dependent upon a myth of "infinite bandwidth," and that the application of a truly content-agnostic network is inefficient in practice.¹⁴ Additionally, since the ISPs claim ownership over their own networks, they argue that it is fully within their rights to regulate and optimize their available bandwidth as they see fit.¹⁵ Comcast's recent throttling of BitTorrent connections is in keeping with this side of the argument. Given the economic concerns of of providing the best possible experience to its users, coupled with the very real fact that BitTorrent is responsible for a large percentage of its available bandwidth, Comcast made the decision to sacrifice the optimistic ideal of neutral network upon the altar of perceived practicality.

The debate over network neutrality is far from finished. Between the widespread, mainstream coverage of Comcast's shaping of their network, and Barack Obama's announcement of his intention to fight for network neutrality,¹⁶ the conversation has never been more prominent nor more relevant.

But conversations depend upon open channels of communication. Instead of fostering free and open communication, ISPs appear to hope for a return to the more centralized broadcast model, in which content providers are the main source and users are little more than passive receivers.¹⁷ In so doing, those in favor of network diversity short-circuit the very ideals originally embodied in the law of common carriage, the ideals that should, given the directness of the analogy, live on in modern Internet regulation. The alternative is a future in which speech not supported by big business is at risk for routing through Texas, and that situation, under any other circumstances, has never been allowed to stand.

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¹  Peter Svensson, Comcast Blocks Some Internet Traffic, Wash. Post, Oct. 19, 2007.
²  See, e.g., Wikipedia, BitTorrent (last visited Nov. 12, 2007).
³  Id.
⁴  Svensson, supra note 1.
⁵  Peter Svensson, Comcast Admits Delaying Some Traffic, USA Today, Oct. 23, 2007.
⁶  Tim Wu, Network Neutrality FAQ (last visited Nov. 12, 2007).
⁷  See, e.g., Susan Crawford, Comcast is Pretending to be You, Susan Crawford Blog (last visited Nov. 12, 2007).
⁸  See, e.g., Wu, supra note 6.
⁹  Eli M. Noam, Beyond Liberalization II: The Impending Doom of Common Carriage, 18 Telecomm. Pol'y 435. Sec. II (1994).
¹⁰  Cybertelecom, Common Carriers, (citing Noam, supra note 9).
¹¹  47 U.S.C. § 251(a)(1) (2000).
¹²  47 U.S.C. § 256(a)(2) (2000).
¹³  See Noam, supra note 9.
¹⁴  See generally, Christopher S. Yoo, Beyond Network Neutrality, 19 Harv. J. Law & Tech. 2 (2005).
¹⁵  Id.
¹⁶  Barack Obama - U.S. Senator for Illinois, Network Neutrality, June 8, 2006.
¹⁷  Susan Crawford, The Radio and the Internet (working draft).

The University of Michigan Wants You To "Be Aware You're Uploading"

by: Kurt Hunt, Blog Editor, MTTLR

In October of 2007, the University of Michigan announced a new “Be Aware You’re Uploading” (BAYU) program “to notify users of University networks that they might be uploading” to peer-to-peer networks.¹  The service, which will automatically e-mail students in residence halls when the University network detects P2P uploading, was said to serve three goals: (1) “to help users avoid unwittingly uploading,” (2) to help users upload lawfully, and (3) to help students “be mindful of the risks” of using P2P.²

Although University of Michigan assistant general counsel Jack Bernard reaffirmed that the school’s “goal is to educate our students so they can understand their choices, risks, and responsibilities,”³ it’s worth taking a closer look at the likely (and plausible) results of BAYU to determine if “education” is indeed the goal being served.

BAYU’s first two stated goals—to help users avoid unwittingly uploading, and to help users who wish to upload do so lawfully⁴—seem sufficiently focused on the well-being of the students to fit within the University’s description of the service’s ultimate purpose. The third, however, is more questionable.

The stated goal of helping students “be mindful of the risks” of using P2P technology is described by Mr. Bernard as simply educating students.⁵  While the educational result is undeniable, I would argue that affirmatively sending an e-mail to students warning them to "be mindful of the risks" of the P2P suggests that education is not the primary goal of the system. Deterrence is.

BAYU seems designed to intimidate. It puts students on notice that there is no anonymity in the residence halls, that their activities are noticed, and that their activities can be traced to them personally. It is far more personal and invasive than is necessary for mere "education."

This may seem like a quibbling difference in the framing of the goal, but its implications for BAYU should not be ignored. If BAYU is primarily serving educational goals, that implies that the University of Michigan is indifferent--or at least is not motivated by its opposition--to uploading of unauthorized content to P2P systems.

The fact is, however, that the University is not indifferent. Unauthorized file sharing from residence halls causes administrative hassles, potential legal liability, and political pressure from the RIAA and related groups.⁶  The University, through Mr. Bernard as well as mass e-mails to students, has repeatedly stressed that it "does not condone unlawful peer-to-peer file sharing" (hardly a surprise).⁷  Both for policy reasons and practical reasons, the University has every possible motivation to reduce unauthorized filesharing from its residence network. At the same time, it recognizes that publicizing BAYU as a "deterrent" to unauthorized file sharing would likely stir dissent within the student community. Hence: "education."

This shift from education to deterrence has important implications for the program’s success. First, it makes success hinge on a reduction of unauthorized file sharing—increased student knowledge of the risk is insufficient. Second, if BAYU proves successful in this respect, the obvious benefits to the University might inspire other schools to adopt similar methods of deterrence (with some perhaps not being wrapped in such rosy clothing).

What then?

If BAYU proves to be successful at deterring unauthorized filesharing and is imitated at many major universities, as it likely would be, the P2P market might see a dramatic reduction in the number of unauthorized uploaders. Studies have confirmed what common-sense tells us: college students make up a disproportionately high percentage of the unauthorized P2P market.⁸  Even accounting for the fact that not all college students connect to the internet via a University network,⁹  that could be a substantial number of potential uploaders that would be actively deterred. In other words, the spread of BAYU could help bring content owners one step closer to the goal of containing unauthorized file sharing.

Whether it's proper for universities to take this action is a broad question of policy that I don't pretend to address here. It's enough for now to point out that BAYU may not be as snuggly as the University portrays it, and that its success may have a wide effect on the future development of the P2P market.

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¹  U-M BAYU: Be Aware You’re Uploading, http://bayu.umich.edu/basics.php.
²  Id.
³  Jack Bernard, ’U’ Puts Students First, The Michigan Daily, Oct. 31, 2007, available at http://media.www.michigandaily.com/media/storage/paper851/news/2007/10/31/Viewpoints/u.Puts.Students.First-3067804.shtml.
⁴  U-M BAYU: Be Aware You’re Uploading, http://bayu.umich.edu/basics.php.
⁵  Jack Bernard, ’U’ Puts Students First, The Michigan Daily, Oct. 31, 2007, available at http://media.www.michigandaily.com/media/storage/paper851/news/2007/10/31/Viewpoints/u.Puts.Students.First-3067804.shtml.
⁶  See, e.g., Press Release, Recording Industry Association of America, Pre-Lawsuit Letters Sent in New Wave Targeting Music Theft on 19 Campuses (Oct. 18, 2007), http://www.riaa.org/newsitem.php?news_year_filter=&resultpage=&id=E549F223-3648-E92C-0CA2-7BFAFC2DB352 (RIAA sent 20 “pre-litigation settlement letters” to University of Michigan students in October, 2007); Press Release, Recording Industry Association of America, RIAA Pre-Lawsuit Letters Go to 22 Campuses in New Wave of Deterrence Program (April 11, 2007), http://www.riaa.com/newsitem.php?news_year_filter=&resultpage=4&id=7408966D-245D-A17D-4869-C0DB1E7ADA97 (RIAA sent 23 “pre-litigation settlement letters” to University of Michigan students in April, 2007).
⁷  See, e.g., Jack Bernard, ’U’ Puts Students First, The Michigan Daily, Oct. 31, 2007, available at http://media.www.michigandaily.com/media/storage/paper851/news/2007/10/31/Viewpoints/u.Puts.Students.First-3067804.shtml; Letter from Provost and Executive Vice President for Academic Affairs, University of Michigan, to students of the University of Michigan (March 8, 2007), available at http://michiganfreeculture.files.wordpress.com/2007/03/riaa11.jpg?w=310&h=257.
⁸  Jack M. Germain, Big Pirate on Campus, E-Commerce Times, June 5, 2007, http://www.ecommercetimes.com/story/57678.html (citing a study by marketing firm NPD).
⁹  American Council on Education, Paying for College, http://www.acenet.edu/Content/NavigationMenu/ProgramsServices/CIP/PayingforCollege/College_Prices.htm (“about 25 percent of undergraduates live on campus”).

RIAA Defendant Challenges Statutory Damages - Problems of Proof and Availability as Reproduction

by: Nancy Sims, Associate Editor, MTTLR

In 2003, the RIAA began a campaign to protect the music of its members by bringing infringement suits directly against individual users of file-sharing software.¹   In the four years since, the RIAA has approached over 20,000 individuals regarding file-sharing activities,² but few related cases have reached the courts because most targets of such suits settle.³  A few individuals have challenged file-sharing charges,⁴ and some have even been awarded attorney's fees.⁵   In the first jury trial in an individual-defendant music filesharing case,⁶ recently held in Northern Minnesota,⁷ the jury found defendant Jammie Thomas liable for 24 counts of infringement, and awarded statutory damages of $9,250 per song, for a total of $222,000 in damages.⁸   Thomas and her lawyer soon announced their intention to appeal the verdict.⁹

Thomas and her defense team initially announced that her appeal would focus on jury instruction no. 15,¹⁰ which stated that the act of making files available on a peer-to-peer network was infringement of the distribution right, "regardless of whether actual distribution has been shown."¹¹   Other commentators agree that this is a key, and legally unsettled, issue.¹²   However, it appears that Thomas and her team have tabled the direct challenge to the jury instruction for now.¹³  They instead filed a notice of remittitur, asking that the jury award be reduced as grossly excessive in violation of the Due Process clause.¹⁴

As Thomas' motion acknowledges,¹⁵ case law and legislative history show that deterrence and punishment are legitimate purposes of statutory damages.¹⁶   Thomas claims, however, that the punitive damages must be limited under substantive due process analysis.¹⁷   Thomas argues that BMW of North America v. Gore¹⁸   and State Farm v. Campbell¹⁹   are applicable to "any grossly excessive monetary award that is imposed for the purposes of punishment and deterrence."²⁰   Since no damages were shown, Thomas argues, the full amount of the award should be considered punitive.²¹   This is at least somewhat supported by statements of one of the Thomas jurors that they wanted to "send a message" by choosing the amount they did, "that you don't do this, that you have been warned."²²

Thomas also argues in the alternative that even if Gore and Campbell are not applicable to statutory damages, the award can be reviewed to determine whether it is "so severe and oppressive as to be wholly disproportioned to the offense and obviously unreasonable."²³   This assertion gains some support from class action cases: courts have sometimes refused to grant class certification where aggregate statutory damages would not be punitive, but might be grossly disproportionate to the harms caused.²⁴   Although courts prefer to grant class certification even in the face of such difficulties, they acknowledge that they can reduce damages if necessary under due process.²⁵

Both of Thomas' arguments depend on the judge making some sort of calculation of proportionality of awarded damages to actual harms. Thomas' motion suggests that record companies' recoup approximately $0.70 of the average $0.99/song price of online music sales, and argues that, "pretending that defendant’s downloading went to someone other than plaintiffs’ agents," the total damages for the 24 files in question would have been $16.80.²⁶   Citing Gore and Campbell, they suggest that 10 times actual damages should be the maximum cap on statutory damages, for a maximum award in this case of about $151.20.²⁷   Alternatively, they point out that plaintiffs acknowledge that the price of an individual CD is about $20, and contend that, even if this much higher amount is the actual damages suffered by plaintiffs, the ratio of actual to statutory damages still far exceeds that suggested in Gore and Campbell.²⁸

A major justification of statutory damages is that they are provided for when actual damages are difficult to prove or calculate.²⁹   It is clear in this case that actual damages are difficult to prove for both parties, and that this fact cuts against arguments on both sides. Thomas' calculation of the actual damages appears to be based on an assumption that at most one person other than the plaintiffs' representatives downloaded any of the files she made available.³⁰   It is unlikely that she can prove this. On the other hand, even assuming that the recording industry does suffer actual damages of $20 per download, each song would have to have been downloaded 462 times to make the $9,250 per song award exactly proportionate. Such a volume of downloading was not shown in the trial, with jury instruction no. 15 allowing for judgment against Thomas regardless of proof of actual distribution.³¹   With no knowledge of the actual number of downloads (if any), the question of proportionality will be a difficult one for the judge to resolve. Since Thomas' motion to reduce the damages obliquely revolves around the question of actual damages, which have not been proven, further appeal or retrial seems likely.

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¹  Electronic Frontier Foundation, RIAA v. The People: Four Years Later 2 (2007), available at http://w2.eff.org/IP/P2P/riaa_at_four.pdf.
²  Id.
³  Id. at 6.
⁴  See Atlantic Recording Corp., et al. v. Tanya Andersen, No. 05-933 (D. Ore 2005) (resolved when parties stipulated to a dismissal with prejudice).
⁵  Capitol Records, Inc. v. Foster, 2007 U.S. Dist. LEXIS 29131 (W. D. Okla. 2007) (finding defendant was prevailing party after a court-ordered dismissal with prejudice, and awarding fees), order available at http://www.eff.org/files/filenode/Capitol_v_Foste/order_granting_fees.pdf), reconsideration denied by Capitol Records, Inc. v. Foster, 2007 U.S. Dist. LEXIS 33227 (W.D. Okla., Apr. 23, 2007); but see Interscope Records v. Leadbetter, 2007 U.S. Dist. LEXIS 65955 (W. D. Wash. 2007) (denying fees when record company voluntarily dismissed case against defendant.
⁶  Eric Bangerman, First RIAA trial gets under way with jury selection, opening statements, Ars Technica, Oct. 2, 2007, http://arstechnica.com/news.ars/post/20071002-first-riaa-trial-gets-under-way-with-jury-selection.html; 16-2 Mealey's Litig. Rep. Intell. Prop. 24 (2007).
⁷  Capitol Records Inc., et al. v. Jammie Thomas, No. 06-cv-1497 (D. Minn. 2007)
⁸  Special Verdict Form at 2-8, Capitol v. Thomas, available at http://www.muddlawoffices.com/RIAA/Virgin%20Thomas/100%20Special%20Verdict%20Form.pdf; 16-2 Mealey's Litig. Rep. Intell. Prop. 24 (2007).
⁹  Eric Bangerman, Thomas to appeal RIAA's $222,000 file-sharing verdict, Ars Technica, Oct. 8, 2007, http://arstechnica.com/news.ars/post/20071008-thomas-to-appeal-riaas-222000-file-sharing-verdict.html.
¹⁰  Id.
¹¹  Jury instructions at 18, Capitol Records Inc., et al. v. Jammie Thomas, No. 06-cv-1497 (D. Minn. 2007), available at http://blog.wired.com/27bstroke6/files/jury_instructions.pdf.
¹²  Bangerman, supra note 9; Fred von Lohmann, Capitol v. Thomas: The Key Appeal Issue, Deeplinks, Oct. 9, 2007, http://www.eff.org/deeplinks/2007/10/capitol-v-thomas-key-appeal-issue.
¹³  Bangerman, Appeal in RIAA case to focus on "unconstitutionally excessive" punishment, Ars Technica, Oct. 15, 2007, http://arstechnica.com/news.ars/post/20071015-appeal-in-riaa-case-to-focus-on-unconstitutionally-excessive-punishment.html
¹⁴  Id.
¹⁵  Motion for Remittitur at 2, Capitol v. Thomas, available at http://blog.wired.com/27bstroke6/files/remittiturMot.pdf [hereinafter Motion for Remittitur].
¹⁶  Cable/Home Communication Corp. v. Network Productions, Inc., 902 F.2d 829, 852 (11th Cir. 1990) (citing Warner Bros., 877 F.2d at 1126). See also Fitzgerald Publishing Co., 807 F.2d at 1117; F.W. Woolworth Co., 344 U.S. at 233.
¹⁷  Motion for Remittitur, supra note 15 at 7, (citing Mo. Pac. Ry. v. Humes, 115 U.S. 512, 523 (1885))
¹⁸  BMW of N. Am. v. Gore, 517 U.S. 559 (1996).
¹⁹  State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408 (2003).
²⁰  Motion for Remittitur at 9.
²¹  Motion for Remittitur at 11.
²²  David Kravets, RIAA Juror: 'We Wanted to Send a Message', Threat Level, Oct. 9, 2007, http://blog.wired.com/27bstroke6/2007/10/riaa-juror-we-w.html.
²³  Zomba Enterprises v. Panorama Records, Inc., 491 F.3d 574 (6th Cir. 2007) (citing St. Louis, I.M. & S. Ry. Co. v. Williams, 251 U.S. 63, 66-67 (1919)).
²⁴  Murray v. New Cingular Wireless Servs., 232 F.R.D. 295, 303 (D. Ill. 2005) (citing In re Trans Union, 211 F.R.D. at 347-5).
²⁵  Id. at 304 (citing Parker v. Time Warner Entm't Co., L.P., 331 F.3d 13, 22 (2d Cir 2003)).
²⁶  Motion for Remittitur at 2.
²⁷  Id.
²⁸  Id. at 3.
²⁹  Cable/Home Communication Corp. v. Network Productions, Inc., 902 F.2d 829, 850-51 (11th Cir. 1990) (citing F.W. Woolworth Co. v. Contemporary Arts, Inc., 344 U.S. 228, 231-33 (1952); Warner Bros. Inc. v. Dae Rim Trading, Inc., 877 F.2d 1120, 1126 (2d Cir. 1989)).
³⁰  See Motion for Remittitur at 2.
³¹  Motion for Remittitur at 3.