RIAA to Parents: Pop-Ups + Viruses = Piracy!
If a parent sees pop-up ads and viruses on her computer, she can be sued for copyright infringement by the RIAA.
At least that's what the RIAA is arguing in a recent court filing in the Capitol v. Foster case, in which a federal judge made the RIAA cough up attorney's fees to a mother, Debra Foster, who had been sued because her daughter was file sharing. The RIAA lawyers had dawdled in dismissing their complaint against Foster, even after her child admitted to being the file-sharer in the house (the RIAA went ahead and got a default judgment against the child).
This new filing marks the first time the RIAA has explained its claim that parents are liable for the infringements committed by their children (a theory that has never been accepted by any court, to the best of my knowledge). The argument is pretty remarkable, built on a house of cards including the notion that "everyone knows" pop-up ads and viruses signify piracy! Here's the relevant portion of the RIAA brief:
Given that it has been established that the Kazaa file-sharing program was on the Foster family's computer, the evidence would have established that the Kazaa icon was clearly visible on the computer when defendant was using it and that there were likely a substantial number of pop-up advertisements, the types of which have been associated with the Kazaa program.
In other words, the RIAA believes that pop-up ads and a system tray icon should put every parent on the hook for every download on the computer.
In addition, it is undisputed that defendant had an account with Cox Communications. Defendant's subscriber agreement with Cox made clear that defendant, as the account holder, was responsible for what is done on her account. ...
Here, the RIAA is trying to make a private contract between Cox and the parent into a promise to the RIAA. Of course, since this is standard boilerplate in ISP customer agreements, this argument would apply equally to every broadband subscriber, whether parent, employer, library, or school.
Finally, plaintiffs believe that discovery would have revealed substantial other evidence of defendant's knowledge and material assistance in the underlying infringements. For example, the computer may well have been in a common area such that defendant heard music coming from the computer when admitted infringer Amanda Foster was using it. In addition, the evidence may have established, as it has in other similar cases, that there were viruses on the computer due to Kazaa and that defendant may have had work done on the computer that would have revealed the existence of the file-sharing program. ...
Yes, parents, that means every time you hear music emanating from a computer, the RIAA believes you have a legal duty to check the copyright pedigree of its source. Oh, and if your computer has a virus, same answer.
Similarly, plaintiffs believe that, had they been given the opportunity, they would have been able to prove vicarious infringement. Specifically, plaintiffs would have proved that, as a parent, defendant had the full right and ability to control her daughter's use of the computer at issue. Most parents impose restrictions on computer usage by their children (e.g., rules about pornography sites and chat rooms), and plaintiffs believe that defendant would have done so as well. Plaintiffs further would have proven that defendant had a direct financial interest in her daughter's infringing activities, which, of course, involve substantial sums of money in terms of the value of the recordings at issue and the potential liabilities resulting from such activities.
By this logic, the more responsible you are as a parent, the more the RIAA will be entitled to collect from you. Moreover, the RIAA is confusing the benefit to the child with the benefit to the parent. As every parent knows, just because your kids wants a new CD doesn't mean you would have bought it for them.
Let's be clear what this pretzel logic is really all about -- the RIAA wants to reach a hand into every parent's pocket in order to fuel their mass litigation campaign, irrespective of whether the law supports this. But there is a bigger risk, as well. If courts accept this argument in file-sharing cases, the RIAA will have a precedent to use against every employer, every library, and every school for every copyright infringement committed on its computers. So I'm on the side of the judge in Capitol v. Foster, who dubbed these RIAA arguments "untested and marginal."
For more on parental liability in RIAA file sharing lawsuits, take a look at the memo we prepared on the subject in 2005 (soon to be updated in light of more recent authorities, including Capitol v. Foster).
Recent DeepLinks Posts
May 29, 2015
May 29, 2015
May 28, 2015
May 28, 2015
May 28, 2015
- Fair Use and Intellectual Property: Defending the Balance
- Free Speech
- Know Your Rights
- Trade Agreements and Digital Rights
- State-Sponsored Malware
- Abortion Reporting
- Analog Hole
- Anti-Counterfeiting Trade Agreement
- Bloggers' Rights
- Broadcast Flag
- Broadcasting Treaty
- Cell Tracking
- Coders' Rights Project
- Computer Fraud And Abuse Act Reform
- Content Blocking
- Copyright Trolls
- Council of Europe
- Cyber Security Legislation
- Defend Your Right to Repair!
- Defending Digital Voices
- Development Agenda
- Digital Books
- Digital Radio
- Digital Video
- DMCA Rulemaking
- Do Not Track
- E-Voting Rights
- EFF Europe
- Encrypting the Web
- Export Controls
- FAQs for Lodsys Targets
- File Sharing
- Fixing Copyright? The 2013-2015 Copyright Review Process
- Genetic Information Privacy
- Hollywood v. DVD
- How Patents Hinder Innovation (Graphic)
- International Privacy Standards
- Internet Governance Forum
- Law Enforcement Access
- Legislative Solutions for Patent Reform
- Locational Privacy
- Mandatory Data Retention
- Mandatory National IDs and Biometric Databases
- Mass Surveillance Technologies
- Medical Privacy
- National Security and Medical Information
- National Security Letters
- Net Neutrality
- No Downtime for Free Speech
- NSA Spying
- Online Behavioral Tracking
- Open Access
- Open Wireless
- Patent Busting Project
- Patent Trolls
- PATRIOT Act
- Pen Trap
- Policy Analysis
- Public Health Reporting and Hospital Discharge Data
- Reading Accessibility
- Real ID
- Search Engines
- Search Incident to Arrest
- Section 230 of the Communications Decency Act
- Social Networks
- SOPA/PIPA: Internet Blacklist Legislation
- Student and Community Organizing
- Surveillance and Human Rights
- Surveillance Drones
- Terms Of (Ab)Use
- Test Your ISP
- The "Six Strikes" Copyright Surveillance Machine
- The Global Network Initiative
- The Law and Medical Privacy
- Trans-Pacific Partnership Agreement
- Travel Screening
- Trusted Computing
- Video Games