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RIAA Says Lawsuits Against File-Sharers “Not About the Money”

Calls legal campaign “fair and reasonable,” and insists that it lets courts and juries “decide the proper dollar amount.”

Sometimes people in this world are better off not saying anything at all when it comes to controversial issues and Steven Marks, general counsel for the RIAA, is just such a person.

Last Wednesday I reported on how Harvard Professor Charles Nesson, who is defending Joel Tenenbaum against charges that he illegally downloaded 7 songs back in 2004, wrote an op-ed piece decrying RIAA lawsuits targeting illegal file-sharers as an “unconstitutional abuse of law,” and that the real problem is the tension between “our antiquated copyright laws and the social reality of ‘digital natives,’” those that have grown up immersed in a digital world.

Now Steven Marks, general counsel for the RIAA, has been given equal time to espouse his views on the the RIAA’s litigation, or what it calls “education,” campaign.

“The record industry is swept up in a sea of change and we have embraced it,” says Marks to counter the charges that it isn’t satisfying consumer demand.

“Let’s be clear: the best anti-piracy strategy is a vibrant legitimate marketplace rich with content and innovative business models. We get that,” he adds.

Oh really?

So was this before or after all the brick and mortar retailers evaporated? The RIAA has never cared about music fans or artists, only how much money it can squeeze per unit. If it has truly “embraced” change then how does it justify charging digital album prices that are the same as those of physical album prices when they lack anywhere near the cost of distribution?

Why does it still insist on DRM protection for many digital music stores when it knows that’s exactly what drives music fans to illegal file-sharing sites?

How about the fact that it’s also oftentimes selection of music that music fans and just isn’t offered by any of the RIAA’s so-called “embracement” projects or partnerships? Record labels only make part of their catalog available for digital downloads, and so long as there’s a gap between the two people will use illegal file-sharing to satisfy demand.

The best part is where Marks sort of glosses over its decade of ineptitude, saying that “four years ago, the industry earned virtually no revenues from digital music services.”

Now who’s fault was that? Napster appeared nearly 10 years ago, and if the RIAA really cared about music fans or artists for that matter, would it have spent 6 years suing everybody it could, up to this very day in fact after it insisted it quit its “education” campaign last August?

Marks goes on to say that “to enable that legal marketplace to reach its full potential, we still need to educate fans about the law and illegal sites that do not compensate artists for their work.” If it wants to “educate” people then why did it fight Nesson’s attempts to have the trial against Tenenbaum broadcast live on the Internet for all to see? What better way to “educate” file-sharers than that? It was a sentiment echoed by District Court Judge Nancy Gertner

“While the Plaintiffs object to the narrowcasting of this proceeding, their objections are curious,” she observed. “At previous hearings and status conferences, the Plaintiffs have represented that they initiated these lawsuits not because they believe they will identify every person illegally downloading copyrighted material. Rather, they believe that the lawsuits will deter the Defendants and the wider public from engaging in illegal file-sharing activities. Their strategy effectively relies on the publicity resulting from this litigation.”

All the RIAA has done has intimidate people, knowing full well that most accused file-sharers can’t afford the costs of mounting a legal defense. Where’s the sense of justice or even the hint of education in that? All lawsuits do, as many artists have pointed out, is alienate music fans and make them turned off to the prospect of supporting them in the future by buying new albums. Would you buy an album from EMI, for example, after having been threatened to pony up $3,000 USD or else?

The music industry needs to find ways to “monetise their behaviour” not discourage it, noted Billy Brag of the Featured artists Coalition recently.

Marks also voices his pleasure that we are on the cusp of transitioning to a “more effective strategy” of fighting illegal file-sharing, “working with Internet Service Providers to forward notices of copyright theft directly to subscribers to point out that their illegal activity has been detected.”

So in other words, the RIAA’s “embracement of change” by creating plans for “innovation and experimentation” in the music marketplace means an intrusion into the privacy of those same music fans they claim to be listening to? How does filtering and monitoring the transfer of files between people online strengthen the music industry as a whole?

Again Bragg’s recent comments ring true, as he remarks about efforts in the UK by the music industry there to get ISPs to institute a “three-strikes” system to disconnect illegal file-sharers.

“Stating that a ‘write and sue’ policy will not work is an admission that the current copyright law is no longer fit for purpose in a digital age,” he writes. “The government has pointed out to the BPI that if it wants to crack down on unauthorized file-sharing, the law is already on its side. Fearful of the prospect of dragging their customers though the courts, with all the attendant costs and bad publicity, members of the record industry have come up with a simple, cost-free solution to their problem: get the ISPs to do their dirty work for them.”

Bragg points out that the plan is flawed for several reasons. He says not only is it “shameful” to force another industry to prop up failings of your own in another, but also questions how it expects to stay ahead of technology if it’s never been able to do so in the past.

“Any unauthorized file-sharers who fear being caught out can simply encrypt their exchanges,” he adds.

Just to make sure any file-sharers out there think that a switch to monitoring your Internet traffic at the ISP might give you a free pass for past transgressions, Marks makes it clear that the RIAA will show no mercy.

“That doesn’t mean a free pass to those who egregiously downloaded unauthorized music in the past or who refuse repeated offers to discuss a reasonable settlement,” he continues.

Is $3000 plus dollars really a “reasonable” amount to the teenagers and poor college students it mainly targets? I think not. Of the more than 35,000 plus file-sharers targeted by the RIAA less than a dozen have seen the inside of a courtroom. Why? Resources.

Marks also criticizes the fact that Tenenbaum admitted to downloading 7 songs illegally and refuses to answer for it. He says that Nesson is trying to transform the court into a “three-ring circus” for trying to “gut the copyright laws.”

Nesson is simply arguing that when Congress wrote the Copyright Act it never intended to allow copyright holders to target “pro se noncommercial defendants,” those acquiring content for personal use.

He furthers that the real problem in all of this is that antiquated copyright laws have yet to catch up to the realities of our digital age. The tension between “our antiquated copyright laws and the social reality of ‘digital natives,’” those that have grown up immersed in a digital world, is what really must be addressed. Nesson has even recently argued that downloading music without permission of copyright holder qualifies for “fair use” exemption from copyright laws.

“We’ve never once sought maximum damages in our court cases against individual downloaders,” Marks writes. “We let courts and juries decide the appropriate dollar amount for any case that reaches that far stage.”

Nevermind that it doesn’t have to, just ask Jammie Thomas when she was initially found liable for $220,000 for illegally sharing 24 songs.

“And this program has never been about the dollars—we lose money on it and any recoveries are a small fraction of the enormous toll wrought upon the music community.”

Oh really? If it’s never been “about the dollars” then why go out of your way to make sure accused file-sharers don’t get their day in court? If it’s to “educate” then why not get the courts to say so, or to allow your arguments to be watched live by millions for the first time?

It’s just more of the same nonsense from the RIAA and the decade-long “three-ring circus” of its own.

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