Friday, March 6, 2009

Record labels continuing to fight existing cases against individuals -- just like they said they would. And this is news?

Ever since the Wall Street Journal broke the story last December 19 that the major record labels were "abandoning" their campaign of "mass suits" against individual peer-to-peer infringers, industry critics have been claiming that the news was all basically just a sham -- "a huge PR campaign rather than anything significant" or even that the RIAA was simply "lying."

The critics' attack goes like this:
  1. RIAA claimed it was stopping all the suits.
  2. But wait! A "new" suit has been filed.
  3. See! The evil RIAA is just a bunch of liars!
The problem is that this line of attack is built upon a foundation of straw men, misreporting of what the labels actually announced, vitriol -- and seemingly no effort to get at the actual facts. So here they are:

Fact: the RIAA (which coordinates the suits on behalf of the labels) never said it was immediately stopping all suits against individuals. In fact, the responsible reporting on the issue made this perfectly clear from the beginning. The original WSJ report explained:
the industry group is reserving the right to sue people who are particularly heavy file sharers, or who ignore repeated warnings
And Ars Technica (which is generally not sympathetic to copyright owners, but, much to its credit, has a commitment to getting the facts right) reported on Dec. 19, 2008:
Those currently on the receiving end of an RIAA lawsuit, though, will have to see it through to the (very) bitter end.
The file-sharing lawsuits will largely come to a halt, though the RIAA tells us it reserves the right to go after people who continue to ignore the notifications.
As for current cases, tough luck; the RIAA intends to see them through.
Fact: the so-called "new" suits being filed aren't really new. Here's what I learned from an RIAA official when I asked: when the RIAA announced that the labels would cease initiating new suits, what it meant more specifically was that it would cease initiating the process which often resulted in suits -- but that in most cases it would continue with the cases that were already in the pipeline. (This is not news; Wired reported it December 23, 2008.) That process was usually initiated by sending an evidence preservation notice to an ISP or university. Once that process got underway, the labels have made the decision to see those cases through to the end -- whether they result in pre-litigation settlement or a lawsuit. And some of the "new" suits are actually pre-existing suits filed against "Doe" defendants, that have now been converted into suits against named defendants (once their identities have been determined through subpoenas to ISPs or universities). The RIAA has consistently said that the process of "initiating" suits ended last August -- and I have not seen any evidence to the contrary.

But couldn't the labels have simply dropped everything -- the settlement demands, the subpoena fights, the lawsuits -- immediately? Yes; nothing in the law required them to keep fighting (and they don't deny that). But here's the explanation from an RIAA official for why it's pressing ahead with cases already in the pipeline:
We are pleased to transition to a new program going forward [involving a graduated response program with ISPs,] but that doesn’t mean we should give a free pass to those who downloaded music illegally in the past. What kind of message does it send if these individuals are not held accountable? How fair would it be to the thousands of individuals who took responsibility for their actions and settled their case while others are let off the hook?
One can agree or disagree with that position, but it's not a claim that the labels were somehow required to proceed with existing cases. And there are probably other reasons the labels didn't simply cut and run, including that such a move could invite a flood of counterclaims and attorneys' fees motions.

Techdirt writes that the labels claim that:
they just couldn't stop other lawsuits that were in progress (even though they hadn't been filed). Apparently, once an investigation has begun there's simply no way to stop it, according to the logic of RIAA lawyers.
But Techdirt's alleged evidence for the claim that the labels said they had no choice but to continue was a link to another Techdirt post, which itself contains no evidence of such a claim. That linked-to post further links to a Wired article -- and neither does the Wired piece contain any evidence for Techdirt's claim that the labels said "they just couldn't stop other lawsuits that were in progress" either. The fact is that, as far as I have been able to determine, the labels never said they "couldn't" stop their lawsuits or investigations -- they merely said that they chose not to. Techdirt's "couldn't stop" theory appears to be completely invented.

So the bottom line is this: the labels' lawsuits against individual accused p2p infringers have declined to a trickle. "New" ones will still be filed from time to time -- either converted Doe suits (like the
Shaun Adams suit that sparked the latest posts by Techdirt and Ray Beckerman), or suits where the pre-litigation investigation began before August 2008, or brand new cases aganst "particularly heavy file sharers." And this is perfectly consistent with what the RIAA has been saying all along.

UDPATE: Ars Technica -- no friend to the labels -- agrees with C&C that the RIAA is simply doing what it always said it would:
Whatever its reasons for continuing to litigate these cases, the RIAA at least appears to be sticking by the letter of the terms of its announcement last year; the labels described what they were going to do and are sticking with it. Whether that strategy is good, necessary, or fair is another question, and one that will probably keep Shaun Adams up at night through the course of his federal trial.


  1. Hello Ben,

    How refreshing! After having been labeled "the one man RIAA" recently in the press, it is wonderful to see someone take the time to report honestly and openly on the other side of the copyright debate. I have fought long and hard for the rights of digital graphic artists, designers, cartoonists, digitizers, animators, photographers, and programmers for the past twenty-five (25) years.

    In my view, copyrights, and our other intellectual property assets, are among the last remaining strongholds of our economy. If we let these slide away under pressure from the "copyleft" in this country, and the countries who do not believe in the enforcement of intellectual property rights, our economy, and our spirit as a nation, will likely sink even lower than it has sunk thus far already in the past decade or so.

    Hopefully, balanced commentary like yours will be helpful in making sure the truth gets out there, and that does not happen.

    Keep up the good work. Readers need to hear both sides of this vitally important international "debate".

    George Riddick
    Imageline, Inc.

    Ashland, Virginia

  2. And just who does the RIAA consider to be a "particularly heavy file sharer"?

    Jammie Thomas with her nine (9) songs and $222,000 verdict?

  3. Actually, Thomas had about 1700 songs in her Kazaa share folder. The labels only sought damages on a tiny fraction of those:

  4. I second Mr. Riddick's "How refreshing!"

  5. Joel Tenenbaum's website says that he only shared seven songs and that the RIAA wants $1 million.

    Is that true?

  6. To Anonymous 2:17:

    According to the plaintiffs, Tenenbaum had 816 songs in his Kazaa share folder, though their focus appears to be on only 7. See pages 2-3 of this brief:

    To get the $1 million figure, Tenenbaum appears to have mutiplied the 7 songs by $150,000, which is the maximum amount of statutory damages available per work for willful infringement. I do not believe the labels have ever indicated that they intend to seek this maximum amount, and I would be surprised if they do so at trial.


Comments here are moderated. I appreciate substantive comments, whether or not they agree with what I've written. Stay on topic, and be civil. Comments that contain name-calling, personal attacks, or the like will be rejected. If you want to rant about how evil the RIAA and MPAA are, and how entertainment companies' employees and attorneys are bad people, there are plenty of other places for you to go.