EFF Chronicles File-Sharing Lawsuits in ‘RIAA v. The People: 5 Years Later’

Recounts the music industry’s failed strategy of suing at least 30,000 individuals that have included children, grandparents, unemployed single mothers, college professors, the handicapped, and even the deceased.

The Electronic Frontier Foundation EFF has written an excellent recount of the RIAA’s “sue ‘em all” anti-file-sharing campaign that began September 8, 2003 called “RIAA v The People: 5 Years Later.” In seven parts it chronicles the failed strategy from prelude to a current assessment.

In part 1, “Prelude: Sue the Technology,” it notes how “The music industry initially responded to P2P file sharing as it has often responded to disruptive innovations in the past: it sent its lawyers after the innovators, hoping to smother the technology in its infancy.”

Rather than capturing the genie and putting it on the RIAA payroll, it instead tried to put it back in the bottle and forget it ever happened.

What the RIAA didn’t realize is that you can’t undo technology, and even though it successfully sued Napster, it was quickly replaced by Aimster and Audiogalaxy. The latter were then in turn replaced by LimeWire, Morpheus, and Kazaa, which were then partially replaced by eDonkey and BitTorrent. For all its efforts the RIAA only succeeded in speeding up the design and release of faster, more efficient, and more difficult to combat P2P and file-sharing programs and services.

In part 2, “Phase One: DMCA Subpoenas by the Thousands,” the article retells how in order for the RIAA to get ISPs to hand over the personal information of accused file-sharers the “…RIAA resorted to a special subpoena power that its lobbyists had slipped into the Digital Millennium Copyright Act (DMCA) in 1998.”

“Under this provision, a copyright owner is entitled to issue a subpoena to an ISP seeking the identity of a subscriber accused of copyright infringement,” it reads. “In the view of the recording industry’s lawyers, this entitled them to get names and addresses from an ISP with a mere allegation of infringement—no need to file a lawsuit, no requirement of proof, and no oversight by a judge.”

The practice was ultimately deemed illegal by a federal appeals court in RIAA v. Verizon, but not before more 3,000 subpoenas had been issued and hundreds had settled to avoid court (none got refunds by the way).

In part 3, “Phase Two: Mass John Doe Lawsuits,” it discusses how the music industry began the practice of suing unidentified “John Doe” IP addresses. It’s team of anti-piracy investigators would trace uploaders and then get a subpoena to force ISPs to divulge the customer’s personal information. The record label lawyers would then either deliver a letter demanding a settlement or amend their lawsuit to name the identified individual.

The practice is extortion at best since most lawsuit targets have little choice but to settle their cases out of court. Even if an individual has a legitimate defense, it’s usually more expensive to hire a lawyer than it is it to simply settle.

In part 4, “Personal Effects = Devastating,” it notes how the effects of the RIAA’s campaign have been “…unfairly singling out a few people for a disproportionate amount of punishment.”

“Tens of millions of Americans continue to use P2P file sharing software and other new technologies to share music, yet the RIAA has randomly singled out only a few for retribution through lawsuits,” it continues. “Unfortunately, many of the people in this group cannot afford either to settle or to defend themselves.”

It reminds us of several examples of individuals whose lives have been turned upside down by accusations over illegally sharing a handful of songs. There was 41yo single mother Tammy Lafky. Settlement offer? $5,000. Annual income? $21,000. Or better yet, the story of MIT student Cassie Hunt whom it recommended drop out of school in order to pay off her $3,750 proposed settlement.

In part 5, “Fighting Back,” we’re given some hope for the future by being reminded of the fact that the file-sharing community has had several significant victories as of late.

A federal judge recently ruled that an RIAA boilerplate complaint could not support a default judgment, which is a court order for money damages against a defendant who doesn’t show up, essentially forfeiting his chance to defend himself. This may make it more difficult for the recording industry to collect large judgments against individuals who are unable to afford lawyers to appear in court on their behalf.

There is also the case of Jammie Thomas, whereby Judge Davis recently ruled that he erred by believing the RIAA’s “making available” theory, that simply having music in KaZaA’s “shared folder” constitutes unauthorized distribution. He even went so far as to implore Congress to prevent excessive damage awards from being awarded in similar copyright infringement claims whereby there is no personal economic gain.

In part 6, “Phase Three: Targeting Higher Education,” it notes how on February 28th, 2007 the RIAA began targeting students at colleges and universities around the country. Within a year, the RIAA had sent over 5,400 “pre-litigation” settlement letters to 160 different schools and collected millions from frightened students.

The RIAA has put special effort into getting universities to deliver these pre-litigation letters. However, university responses to this effort have been varied, ranging from complete refusal to forward pre-litigation letters to students, to fining students upon receipt. Since the letters are sent under threat of legal action, but before any lawsuit commences, the colleges themselves are under no legal obligation to forward these letters to students who have been targeted. The University of Wisconsin, the University of Maine and the University of Kansas, for example, have refused to forward the pre-litigation letters, citing a refusal to be the RIAA’s “legal agent.”

In the last part, part 7, “Is it Working?,” the EFF takes stock of the music industry’s strategy and concludes that the “…answer is a resounding no.”

Why?

• By the Numbers: U.S. File-sharers Undeterred – virtually all surveys and studies agree that P2P usage has grown steadily since the RIAA’s litigation campaign began in 2003.
• Education by Lawsuit: Lesson Learned and Ignored – 72% of high school students still illegally download music, meaning that lawsuits are largely no longer educational.
• Going After the Fans = Unnecessary Roughness – According to the RIAA’s public statements, its lawsuits against individuals were necessitated, in part, by court rulings that blocked record labels from going after P2P technology vendors. This is no longer the case, and yet it still targets individuals.
• What About iTunes? A Drop in the Bucket – Music fans need more attractive authorized music download services, ones that are DRM-free unlike iTunes and that have the quality and selection consumers have come to expect.
• Incubating New “Darknet” Technologies – campaign has encouraged music fans to migrate to file-sharing technologies that are faster, more efficient, and harder to detect.

So what does the EFF suggest? A voluntary collective licensing regime.

It furthers:

EFF advocates a voluntary collective licensing regime as a mechanism that would fairly compensate artists and rightsholders for P2P file sharing.The demand is there: for example, a recent survey showed 80% of teens are interested in a good legal P2P solution.143 The concept is simple: the music industry forms one or more collecting societies, which then offers file sharing music fans the opportunity to “get legit” in exchange for a reasonable regular payment, say $5 per month. So long as they pay, the fans are free to keep doing what they are going to do anyway—share the music they love using whatever software they like on whatever computer platform they prefer—without fear of lawsuits. The money collected gets divided among rightsholders based on the popularity of their music. In exchange, file sharing music fans who pay (or have their ISP or software provider or other intermediary pay on their behalf) will be free to download whatever they like, using whatever software works best for them. Universities, for example, could obtain blanket licenses for their campus, solving problems with copyright holders and ensuring freedom of access in our nation’s centers of innovation.The more people share, the more money goes to rights-holders. The more competition in P2P software, the more rapid the innovation and improvement. The more freedom for fans to upload what they care about, the deeper the catalog. This model is currently being explored by some of the major labels.

Moreover, its time the RIAA acknowledged the failure of its efforts thus far and dared to finally and fully embrace what it’s been trying to destroy since Napster back in 1999 – digital music distribution. With brick and mortar retailers largely gone, it’s no wonder that physical album sales are taking such a hit these days. Coupled with DRM, thin selections, and interoperability headaches, the music industry has created a music landscape where music fans are almost seen as a threat rather than a customer.

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