Living with Napster regret
posted by Kaimipono D. Wenger
A friend of mine who reads the blog asked me a lengthy, somewhat personal question relating to Dan’s post. I’m not an IP expert and I didn’t know the answer. I gave him my own best guess, but I suspect the folks here will have more insight. His question is this:
When I was in college almost ten years ago, I set up a Napster account and I downloaded some music, over a year or two’s time. I probably downloaded a couple of hundred songs total, and burned some of them onto CDs. All of my classmates were doing it too. Eventually, Napster shut down, which stopped me from any more downloading. Some of my friends switched to Gnutella or Kazaa, but I never figured those out, and I already had all the music I needed. For a few years, I continued to use Napster to listen to music, but not to download. Later I switched to media players like Windows Media Player for everyday music listening on the computer.
Years later, I graduated from grad school, got a job, started getting paychecks. And realized that I wasn’t really comfortable with Napster music anyway, and was a little worried about liability. So I switched to legal music. I tried out a few pay services. I hated the new Napster, I couldn’t make it work. Eventually I switched to Itunes which is easy to use. I bought legal copies of most of the songs I had downloaded before. At the moment, I’ve got hundreds of legal downloaded Itunes songs.
I don’t listen to any of the old downloads anymore (except for a few rare, foreign songs that I’ve been unable to find legal copies of on any pay service). The downloaded music stash is not on my computer. I’m not sure whether I even have copies of most of it anymore, though I suspect that some of my old hard drive backups from grad school — CDs in storage — probably have some of it.
Should I be worried about getting one of these letters telling me to pay $10,000? Can “they” find me, either by checking Napster user records (but there were 10 million Napster users!), or by subpoenaing my school, or by bothering my ISP? Is there a statute of limitations on this? Does it matter at all that I’ve now bought legal copies of most everything? Should I contact them and try to settle? How much do I need to be freaking out?
My reply: I believe that the general SOL for copyright is three years, but that’s way outside my area — I’m not an IP guy at all; if it’s outside the SOL like I think it is, then you’re unlikely to be found liable for file sharing done during 1999 or 2000; I do think the CDs could still get you in trouble, but if they’re really gathering dust in storage, it’s extremely unlikely that the RIAA will find out about them; it’s also unlikely that they’ll find you from Napster use in 1999 or 2000, since there were 20 million Napster users and I doubt they’re all getting letters; and, I don’t believe that “I made it right by buying legal copies later” is a valid defense. I would definitely not contact the RIAA; I doubt they’re going to find you, and if they do, I don’t think you’ll get much credit for saying “I voluntarily turned myself in.”
How correct was my response to my friend? Did I miss any important points? How much should he be worried?
December 31, 2007 at 4:13 am
Posted in: Intellectual Property
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Responses (5)
Michael Risch - December 31, 2007 at 8:18 am
I think the answer was quite good. A couple things to add:
1. They are going after sharers, not downloaders, so the risk is decreased there.
2. Downloaders don’t leave the same trail as sharers, because the presence is more ephemeral
3. The SOL in most circuits (maybe all) is 3 years “rolling” to the extent that there are continuing infringing acts. So, the download 10 years ago is barred.
4. Even so, playing a CD may not actually violate any of the 112 acts – no copying, no public performance, etc. BUT, under Peak v. MAI, loading it into RAM might be considered making a copy and thus infringing (moving music to another computer certainly would be infringing).
5. If your friend truly bought all (or most) of the downloaded songs, then I wouldn’t be so quick to give up the fair use argument as a “try before you buy” thing. Then again, holding the songs for so long before buying weighs against that.
6. I also wouldn’t recommend contacting the RIAA, but I think that you might get more credit than you think. The SBA routinely gives “better” deals to those that voluntarily comply (they still extract a bunch). Someone who feels guilty and went clean might get off pretty light if it was coupled with mea culpa press releases, etc.
Bruce Boyden - December 31, 2007 at 2:28 pm
In addition to the 3-year statute of limitations, the ISP records necessary to connect particular users to particular IP addresses (which is likely all Napster had) have probably long since been erased. That’s one reason why the RIAA and other plaintiffs suing anonymous defendants need to act quickly in serving ISPs with subpoenas.
TJ - December 31, 2007 at 2:59 pm
I believe your friend is sitting quite pretty, both from a SOL perspective and from the 1-in-20-million perspective. But the RIAA can now very easily find him. Instead of subpoenaing the ISP (long dead trail), just subpoena Kaimi!
Kaimi - December 31, 2007 at 6:53 pm
Good point, TJ.
Note to RIAA sleuths: My friend is wholly fictional. I talk to imaginary friends all the time! Let me introduce you to my friends Abraham Lincoln, Teddy Roosevelt, and Hamlet. We play checkers every weekend.
In fact, I just made the whole thing up in order to come up with an interesting post!
Hmm. Don’t know if that’ll throw em off the trail.
RIAA - January 1, 2008 at 12:49 pm
Too late.
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