Breaking Up Downloading
On Sept. 8, 2003, the Recording Industry Association of America launched its first lawsuits against individuals who had downloaded music files on the Internet without paying for them.
At the time, critics argued that a campaign to sue music lovers was not just bad public relations, but perhaps unfair and illegal. But more than two years later, the campaign has survived at least one serious legal challenge and has become an unstoppable litigation machine.
So far the RIAA says it has filed more than 17,000 suits and continues to file another 700 to 750 a month. The group says there are 13,000 active suits, and it has settled thousands of others for an average settlement of $4,000.
Opponents of the RIAA strategy like to play up horror stories about the campaign. A report released last November by the San Francisco-based Electronic Frontier Foundation, a nonprofit focusing on Internet rights, includes stories like that of a single mother in Minnesota who faces $500,000 in penalties for her daughter’s alleged downloading. Recently, Candy Chan became one of a very few people to persuade a court to toss an RIAA suit when she argued the likely culprit was not her but daughter Brittany, then 13.
The RIAA agreed to drop the suit, but it then turned around and filed a new suit against Brittany.
“The recording industry should be focused on better carrots than just using the stick,” says Fred von Lohmann, a senior staff attorney with the EFF. “It’s incredibly unfair for a very small number of people to be disproportionately punished. It’s not fair that one kid in a class will be punished, when the 20 other kids around him do the same thing.” But the RIAA dismisses the characterization that the suits are unfair. General counsel Steve Marks concedes the suits target some offenders and leave others, but, he points out, so do speeding tickets.
“In most cases it’s clear who’s committing the act, and we go after that person,” he says. “But parents can’t plead ignorance; they need to have a role. They should be telling their children, ‘If you use the Internet, you should not steal music you haven’t paid for.’ ”
There is at least one precedent for the RIAA strategy. Satellite television provider DirecTV filed more than 24,000 lawsuits against individuals for allegedly using technology to steal television content. The company continues to sue individuals caught stealing satellite signals, though the campaign has slowed as courts have ruled DirecTV cannot sue simply for owning the technology to steal signals. The technology must actually be used.
Choosing Its Battles
The RIAA and DIRECTV campaigns both keep lawyers on retainer across the country ready to file suits in any jurisdiction where infringers are known to live. And both companies have set up call centers to facilitate quick settlements.
The RIAA can’t sue millions of people worldwide who download copyrighted music for free, but the organization has said it hopes the campaign will force people to respect the copyrights of music labels.
“It’s a difficult decision, and not every industry will opt to go the same route when faced with these kinds of challenges,” says Santa Monica, Calif., attorney Ian Ballon, who has represented both entertainment and technology companies. “They certainly get some negative press attention, but on the balance, attitudes toward file sharing seem to be changing since they’ve started.”
The one hitch in the recording industry’s attack was Recording Industry Association of America v. Verizon Internet Services, 351 F.3d 1229 (D.C. Cir. 2003). The RIAA was using expedited subpoenas to force Internet companies to turn over the names and personal information of individuals sharing music online.
Internet provider Verizon sued and convinced the federal court that the RIAA was abusing its right to subpoena information under the Digital Millennium Copyright Act, the 1998 law that generally limits Internet service providers from copyright infringement liability for simply transmitting information over the Internet.
The Verizon case brought about a change in the RIAA’s legal strategy. Before the association can demand names, it must file John Doe suits to open discovery. Doing that enables the RIAA to obtain the information associated with Internet addresses where downloading or sharing music files is known to occur.
Adding this one extra hoop to jump through has done little to slow the litigation. “It just means that we file the John Doe subpoena first, and then we name the de- fendant,” says RIAA general counsel Marks.
It is perhaps surprising that the RIAA has needed to pursue this strategy at all, since lawsuits against companies like Napster and Grokster that facilitate and promote file sharing have been successful. Together with the motion picture industry, the RIAA never lost a suit against a company that offers online file sharing.
Last year, the U.S. Supreme Court ruled in Metro-Goldwyn-Mayer Studios v. Grokster, 125 S. Ct. 2764, that any company that promotes a device or service to infringe copyright is liable. That follows a 2002 ruling that killed the original Napster file-sharing service for similar reasons. A&M Records Inc. v. Napster, 284 F.3d 1091 (9th Cir. 2002).
But the Internet has proven tantalizingly difficult to contain. Early suits made illegal a service like the one Napster once operated, with a centralized system allowing files to be downloaded. Since then, computer programmers invented systems that had no centralized control, making it that much more difficult to crack down. Instead of keeping a master list of files that can be downloaded for free, distributed systems put that list across thousands of individual computers, which means that the RIAA can’t just shut down one company or one computer to kill a file-sharing system.
In addition, the RIAA found people resistant to their message that free music was unfair to the artists.
“For a while, before the lawsuits, we tried to address the issue by suing the networks themselves and by employing an educational campaign,” Marks says.
“This is not our first choice to address the problem, but human nature made the education program difficult. People do not want to quit unless there’s an actual penalty involved.”
Critics like von Lohmann argue that file sharing is still wildly popular and outstrips legal paid music services on the Internet.
But the RIAA insists its lawsuits have arrested Americans’ penchant for free downloads, claiming that the practice has stopped growing. “The growth of illegal file sharing is now a straight line,” says Marks. “More people are using broadband Internet access, which is the easiest way to use peer-to-peer file sharing, yet the number of users has not gone up.”
In fact, the RIAA is looking for ways to expand its strategy into one of the few arenas that have been most resistant to its tactics. Even though the very first RIAA lawsuits were filed against college students, university campuses have proven to be the most resistant to the association’s pressure. That’s because colleges often have local computer networks that are not connected to the Internet. Students can trade files with one another and not be detected by RIAA investigators who troll the Internet looking for copyright violators.
Marks denies claims from critics who assume the program has become a self-sustaining or even profitable venture for the music industry organization. He admits that rulings like Grokster will make it easier to shut down services that allow copyright infringement online, but he says the RIAA’s litigation machine will continue against individuals, too.
“The bottom line is that there is no one solution to this problem,” Marks insists. “A multitiered legal strategy is the only way to have a real, lasting impact. We have no plans to wind it down; it serves a very important purpose.”