Downloading without being sued

  • A proposed system named Choruss would legalize file sharing on participating campuses.
  • Students under the program could not be sued by record companies, but are still vulnerable to other legal action.
  • The system would not permit unauthorized peer-to-peer systems, such as Limewire.

If the music industry has its way, colleges campuses will get their own Choruss. Except this "chorus" isn't of the traditional variety.

Choruss is a program being proposed by Warner Music Group to allow legal file sharing on campuses that buy into the program. The cost of Choruss would be dispersed into student fees, and the rate presently being suggested is $5 a student.

However, it is unknown whether Choruss will be mandatory for all students, whether it will cover the entire campus and whether only specific types of programs can be used with it.

Jim Griffin, chief spokesperson, stated in a keynote speech at Digital Music Forum East that Choruss' definition and composition will differ across campuses.

"Choruss will experiment and will not apply any one size fits all approach," Griffin said in his speech on February 26.

This unique, non-defined configuration could give Choruss a chance in bargaining it might not otherwise have, said Bennett Lincoff, an intellectual property lawyer specializing in digital property rights.

"They may not be able to get in the door any other way," Lincoff said. Lincoff has been working since 1994 to develop new business models for the music industry in light of the Internet.

Shortly after Griffin's speech, Lincoff wrote an article critiquing the plan on the blog Intellectual Property Watch. One of Lincoff's points was Griffin and Warner Music Group were not offering licenses to consumers —

+ they are offering what were called "covenants not to sue."

As Lincoff described it, "The covenant is that you will not be sued for your peer to peer file sharing activity…you then get to engage in file sharing with those labels' records and you will not be sued by those labels for that file sharing."

However, this does not apply to the publishers of the music, who own the song itself, not the recording, Lincoff said.

"If the labels grant the covenant not to sue, then they don't speak on behalf of the music publishers, who very well might sue you," Lincoff said.

He said by granting covenants rather than licenses, music labels can continue to go after illegal peer-to-peer systems such as Limewire. If Choruss offered licenses to downloaded music, music companies would no longer be able to sue peer-to-peer services for copyright infringement, Lincoff said.

"The labels that dominate Choruss don't want peer-to-peer to be lawful, but they still want to get money from students for their peer-to-peer activities," Lincoff said.

Erik Ugland, an assistant professor in the College of Communication, said the focus on continuing the fight against illegal peer-to-peer sharing is the real reason for the decision to create a covenant not to sue rather than a license.

"For all practical purposes, there's not much of a difference between the two," Ugland said.

He said the covenant will act as a license because record labels are the only group that have sued students thus far, and music publishers likely won't follow suit.

Ugland did point out that there could be a problem if not every label gets on board.

Right now, three of the four major record labels, along with many independent labels, have joined Choruss. Universal Music Group is the one holdout among the four major labels.

If the database is not comprehensive, Ugland said, students will continue to use illegal downloading methods even to get technically legal music because they simply won't know the difference.

At Marquette, illegal downloading is not as common in comparison to other universities, according to Mary Simmons, network and security director in Information Technology Services. However, that doesn't mean that those who do download illegally are ignored.

"The recording industry requires universities to do something," Simmons said.

Marquette's response is a three-strike policy: if a dorm room's IP address is found to be illegally downloading material off the Internet three different times, the room's Internet connection is shut off.