RIAA says lawsuits cannot be the complete answer to music piracy

The Recording Industry Association of America’s massive lawsuit campaign to crack down on music pirates has generated a lot of bad PR, while any good that has come out of it remains controversial at best. In a recent conversation with TG Daily, the RIAA acknowledged that suing potential customers “was not the answer,” while adding that the lawsuits were “a necessary part of a larger equation.”

“Litigation tends to generate more heat, friction, and headlines,” Jonathan Lamy, a spokesman for the RIAA told us. “What is the most important anti-piracy strategy is aggressive licensing and offering great legal alternatives. That is what our member companies obviously do and our job is to complement that, which is the most important thing to do to win over fans.”

According to the latest statistics from the RIAA, there were over 7.8 million households in March 2007 in the U.S. that illegally downloaded music versus 6.9 million households in April 2003, when the litigation campaign began. However, while this number suggests that the lawsuits have been counter-productive there is also the fact that the broadband penetration rate in the U.S. has also more than doubled since 2003.

Still, whether or not the litigation has had much of an effect in mitigating piracy, the benefits for society, as well as for the recording industry, remain debatable.

“I don’t think [the litigation] has made a meaningful dent in how much piracy goes on among American young people,” John Palfrey, a clinical professor of law at Harvard Law School and executive director of the Berkman Center for Internet and Society. “And I think it continues to represent a signal that the recording industry is out of step with the future, and frankly out of step with the present as well [….] But it is more importantly, I think, a distraction from finding the way forward in a digital age.”

Besides its questionable benefits, the RIAA’s lawsuit dragnet that has involved over 21,000 legal actions in the U.S. since 2003 and has ensnared some innocent parties in its wake.

One such person wrongly accused was Tanya Andersen, a single mother who is also disabled, against whom the RIAA only recently dismissed its lawsuit against her for allegedly having shared 1400 pirated music files.

The claim was dismissed with “prejudice,” meaning that the RIAA or the record companies it represents must pay her attorney fees.

But the RIAA’s dismissal of the case came after more than a year after Ms. Andersen first received a letter from RIAA lawyers claiming she was liable for a minimum of $750 for each of the 1400 songs they claimed she downloaded.

Ms. Andersen, who had never heard of the songs and artists she allegedly pirated then offered to surrender her computer as proof that she had not downloaded the files. But instead, the RIAA’s continued to litigate with same zealousness as if it were going up against a large corporation.

Ms. Andersen’s eventual legal victory is but one example of other dismissals of RIAA cases, which were dropped after over a year of depositions, trials, and numerous other time-consuming procedures the defendants were subjected to but not compensated for.

Federal judges have rejected RIAA’s legal claims in federal courts in Oklahoma, New York, and in Michigan.

Some of the defendants are taking a more aggressive approach in fighting back. Defendant Suzy Del Cid in Florida recently filed a counter claims against UMG for computer fraud and abuse, extortion and trespassing when her computer was accessed.

As far as bad PR goes, it does not get much worse when a multi-million dollar legal machine wrongfully attacks single mothers with limited financial resources to fight back. But instead, the RIAA has extended its litigation campaign.

The RIAA has begun to target college campuses, much to the ire of university officials and some politicians. In what it called a “fifth wave” of pre-litigation letters, the RIAA said its lawyers have sent over 395 letters to 19 universities demanding settlement fees. The organization also has asked universities to forward copyright infringement complaints to students for file sharing on school networks to ; reactions are pouring in and not all universities said they will follow the idea : Harvard was among the first that said that it will ignore the RIAA’s request. Instead, more and more universities are beginning to enforce their own piracy policies : For example, the University of Kansas is reported to have implemented a new copyright infringement policy for the students, which says that students who are caught downloading copyrighted material will lose their privileges on the university’s residential network “forever”.

From the view of the RIAA, it is unlikely that the litigation will end anytime in the near future.

“They know what they are doing. They are not going to wake up one morning and say ‘oh, gee, there is a new method of distributing music,’” Lory R. Lybeck, Andersen’s attorney from Lybeck Murphy of Mercer Island, Washington, said. “I think what it is going to take is for the artists and the general public to say ‘you guys are dead. You’ve been dead for a long time.’”

The settlement fees are certainly not paying for the litigation costs, either, Ray Beckerman, a New York-based attorney with Beldock Levine & Hoffman, who has represented defendant clients against RIAA claims, said.

“It has cost them more than they’ve collected,” Beckerman said in an email. “They’ve accomplished nothing, other than to create a whole class of people who are boycotting their product.”

In fairness, the majority of the 21,000 IP addresses targeted for illegal file downloads in the U.S. are probably at fault in the legal sense. Litigation is by no means the only strategy the recording industry employs to thwart music file pirating, either.

“No one relished having to take all these actions, but they have undeniably played a big role in raising awareness that unauthorized file-sharing is illegal and they have helped contain levels of file-sharing,” a spokesman for the International Federation of the Phonographic Industry - the international equivalent of the RIAA – wrote to us in an email. “But legal actions are in no way a strategy in isolation - making great music services available is key, as is public education. At the same time it’s recognized that, effective as they are, lawsuits against illegal-file sharing are only the second best way to stop mass piracy on the internet.”

Instead, the recording industry’s main emphasis is more focused on the ISPs, the spokesman said. “They have the ability and the opportunity to make a huge difference simply by enforcing their terms and conditions against people file-sharing on their networks and disconnecting infringers,” the International Federation of the Phonographic Industry said.

But while statistic show that the RIAA is getting its message across that downloading music files without paying for them is illegal, many do not deem sharing files from a CD that they or someone else has paid for as stealing or morally wrong. People know that smoking marijuana or driving above the speed limit without endangering the welfares of others, are against the law, for example, but people do not necessarily see these acts as immoral.

“[Studies] show a continued sense on the part of American young people that file sharing may be wrong on the law but it is acceptable as a moral matter,” Palfrey said.

The artists who stand to lose money are often hardly advocates of the massive litigation campaign, either.

Rick Mason, for example, the drummer for Pink Floyd recently told this writer how he believed that artists need to be paid for their work, but that lawsuits were the wrong approach.

Instead, artists’ compensation should increase with new music distribution methods, Lybeck said. “They should let the music authors actually share some of the profit, which [the RIAA] has had a strong hold on in the distribution scheme for 50 years,” Lybeck said. “There is a whole new distribution capability, and the [RIAA] guys are not needed—and they know it.”