RIAA efforts against file sharing

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The Recording Industry Association of America is a fierce opponent of copyright infringement through file-sharing. The organization particularly targets music files distributed via the Internet using peer-to-peer software, a practice which the RIAA claims results in a reduction of profits of $4.2 billion for the music industry worldwide.^[1]

Hilary Rosen, the RIAA's president and chief executive officer from 1998 to 2003, was an outspoken critic of peer to peer file sharing^{[citation needed]}, and under her direction, the RIAA waged an aggressive legal campaign trying to eliminate file-sharing worldwide. Rosen has since expressed "concern that the lawsuits have outlived most of their usefulness," and that music devices should try "to work better together."^[2]

The RIAA and its member groups argue that Internet distribution of music, without the consent of the owner of the copyright to that music, harms the careers of current and future artists, both because record companies would have fewer sales, and also because musicians, singers, songwriters and producers depend heavily on royalties and fees gained from their music.

The RIAA takes a broad view about what constitutes copyright infringement. In 2006, the RIAA claimed that ripping CDs and backing them up does not constitute fair use, because tracks from ripped CDs do not maintain the controversial DRM to prevent the music file from being copied. They argue that there is no evidence that any of the relevant media are "unusually subject to damage" and that "even if CDs do become damaged, replacements are readily available at affordable prices."^[3]

The RIAA sees lawsuits as one way to combat the problem of Internet-based copyright infringement. RIAA President Cary Sherman claims that the large number of lawsuits filed has "arrested the growth of a runaway solution that would have grown worse and worse."^[4].

The evidence of the effectiveness of the suits is not conclusive. Recent research suggests that the lawsuits have reduced the number of files large file-sharers offer but have had limited effect on those who only offer small number of files (typically less than 1000) and have had negligible effect on general availability of files at any random time.^[5]

In an Oklahoma case, Capitol Records v. Debbie Foster,^[6] the RIAA was forced to dismiss a case after a woman filed a motion for leave to make a motion for summary judgment and attorneys fees, stating that she had nothing to do with file sharing and that her only nexus to the case was that she had paid for internet access. The judge ruled that the RIAA's withdrawal of the case -- after one and a half years of litigation -- did not immunize it from possible liability for attorneys fees, holding that the defendant was a "prevailing party" under the Copyright Act.^[7] The Court subsequently ruled that defendant was entitled to be reimbursed for her reasonable attorneys fees, since the RIAA's pursuit of its case was, at best, "marginal", and was being pursued to extract a settlement from someone who was clearly known not to be the direct infringer.^[8] The Court noted that the mere fact that Ms. Foster was a person who paid for an internet access account was not a basis for a copyright infringement lawsuit against her. Ms. Foster's motion for attorneys fees had been supported by an amicus curiae brief of the American Civil Liberties Union, Public Citizen, the Electronic Frontier Foundation, the American Association of Law Libraries, and ACLU Foundation of Oklahoma.

Other instances in which the RIAA was known to have been forced to back out of a case to avoid a loss, are Priority Records v. Brittany Chan in Michigan, Virgin Records v. Tammie Marson^[9] in California, and Elektra v. Wilke^[10] in Illinois.

The RIAA typically seeks $750 statutory damages per song file. In the Brooklyn lawsuit UMG v. Lindor,^[11] the defendant argued that the RIAA's damage theory was unconstitutional, because it sought 1071 times the actual 70 cents reduction of profits per song (the prevailing wholesale price of a download). The court ruled that this defense was not frivolous, was based upon case law and legal scholarship, and deserved to be heard.^[12]

As of February, 2007 the RIAA began sending letters accusing internet users of sharing files and directing them to a web site, (http://www.p2plawsuits.com/), where they can make "discount" settlements payable by credit card. The letters go on to say that anyone not settling will have lawsuits brought against them. Typical settlements are upwards of $3,000. This new strategy was formed because the RIAA's legal fees were cutting into the income from settlements. ^[13]

Contents 1 The RIAA "Dirty Dozen" 2 Criticism 3 Clean slate program 4 References

[edit] The RIAA "Dirty Dozen"

In a May 3, 2006 press release, the Association labeled the cities of Atlanta, Austin, Chicago, Dallas, Houston, Los Angeles, Miami, New York, Philadelphia, Providence, San Diego, and San Francisco, "Piracy Cities". It declared them "hot spots" of copyright infringement relating to music, with large numbers of individuals engaged in copyright infringement, from the manufacturer level all the way down to the point of retail sale.^[14]

[edit] Criticism

Critics of the RIAA have claimed that the RIAA's attacks against the sharing of music files have failed to stop the sharing or protect their sales. They note the increase in CD sales during the Napster era and the subsequent decrease during the RIAA's crackdown on peer-to-peer network users,^[15] and instead believe that the trading of songs over P2P actually increases new artists' exposure and audiences, which increases sales. The steadily increasing popularity of creative works which may be legally distributed, such as those which are under some of the Creative Commons licenses, is taken by these critics as proof that the RIAA's restriction of music distribution runs counter to their own interests. Some of the RIAA's members have released samples under certain Creative Commons licenses.^[16]

Organizations such as p2pnet^[17] allege that the RIAA is, in effect, an organized cartel which artificially inflates and fixes the prices for CDs. The allegations note that the "Big Four" (EMI, Sony-BMG, Universal Music and Warner) distribute over 95 percent of all music CDs sold worldwide, and that the share of the price of an individual CD actually received by the artist is low, despite the large profits made by the record company.^[18][19] In 2003, the major CD issuers in the American market, including the "Big Four" settled a major scale price-fixing case brought by 43 state Attorneys General by issuing refunds to consumers and donating CDs to libraries and educational groups.^[20] This drew additional criticism, since many of the CDs donated to schools were duplicates or were inappropriate for high school libraries.^[21] On top of all this, the RIAA now also claims that it gives too much money to the artists and seeks to reduce the royalties paid out to artists.^[22]

There is much criticism of the RIAA's policy and method of suing individuals for copyright infringement, notably with Internet-based pressure groups such as the Electronic Frontier Foundation, Boycott RIAA and FreeCulture.^[23] To date, the RIAA has sued more than 20,000^[24] people in the United States suspected of distributing copyrighted works, and have settled approximately 2,500 of the cases. There are some suggestions that the RIAA begins legal proceedings without any knowledge of whether they have engaged in copyright infringement or not.^[25] Brad Templeton of the Electronic Frontier Foundation has called these types of lawsuits spamigation and implied they are done merely to intimidate people.^[26]

The RIAA has been criticized in the media after they subpoenaed Gertrude Walton, an 83-year-old grandmother who had died in December of 2004.^[27] Mrs. Walton stood accused of swapping rock, pop and rap songs. The RIAA in 2003 attempted to sue Sarah Seabury Ward, a 66 year-old sculptor residing in Boston, Massachusetts. They alleged that she shared more than 2,000 songs illegally. The RIAA dropped the suit when it was discovered that she was a computer novice. The case was dismissed, but without prejudice.

In a Brooklyn case, Elektra v. Schwartz,^[28] against RaeJ Schwartz, a Queens woman with Multiple Sclerosis, the RIAA's Lawyers wrote to the Judge that they were in possession of a letter in which "...America Online, Inc., has confirmed that Defendant was the owner of the internet access account through which hundreds of Plaintiffs’ sound recordings were downloaded and distributed to the public without Plaintiffs’ consent.” After the defense received a copy of the letter, it turned out that the letter merely identified Ms. Schwartz as the owner of an internet access account, and said nothing at all about "downloading" or "distributing".^[29]

The RIAA has also been criticized for bringing lawsuits against children, such as 12 year old Brianna LaHara in 2003.^[30] The RIAA also attempted to sue Candy Chan of Michigan, for the alleged actions of her daughter, 13 year old Brittany Chan. Under the threat of a possible defendant's motion for summary judgment and attorneys fees, the RIAA withdrew the case Priority Records v. Chan.^[31][32] When the court ruled in favor of the mother, dismissing the case, the RIAA proceeded to sue her child. However, prosecuting a minor is more difficult; the Michigan federal court required the RIAA to make provision for a guardian ad litem to be appointed to protect the interests of the child, and required the RIAA to be responsible for paying the guardian ad litem. The RIAA failed to submit a workable proposal, and the Court dismissed the case. The RIAA recently sued the 16-year old son of Patti Santangelo^[33] and as of this writing is attempting to force a 10 year old girl in Oregon to be deposed (she would have been 7 years old at the time of the alleged infringement)^[34].

The RIAA's recent targeting of students has generated controversy as well. An April 4, 2006 story in the MIT campus newspaper The Tech indicates that an RIAA representative stated to Cassi Hunt, an alleged file-sharer, that previously, "the RIAA has been known to suggest that students drop out of college or go to community college in order to be able to afford settlements."^[35]

The RIAA has also filed a lawsuit against a woman who has never bought, turned on, or used a personal computer for using an "online distribution system" to obtain unlicensed music files.^[36] This occurred again in the Walls case; "I don't understand this", said James Walls, "How can they sue us when we don't even have a computer?".^[37]

The RIAA filed a lawsuit against Larry Scantlebury, a man who had passed away. They offered the deceased man's family a period of sixty days to grieve the death before they began to depose members of Mr. Scantlebury’s family for the suit against his estate.^[38]

It has also been claimed that the RIAA may have deliberately inserted white noise into music files on Kazaa, which contravenes Kazaa's terms of service.^[39]

[edit] Clean slate program

Between September 2003 and April 2004, the RIAA operated a system called the Clean Slate Program. It claimed to give those accused of copyright infringement amnesty "on the condition that they refrain from future infringement,"^[40] plus delete the infringing material. The RIAA states this was an educational initiative about illegal file sharing, and was stopped due to increased public awareness in the issues. The program may also have been stopped due to the low number of takers.^[41] There is some doubt about whether the RIAA can offer this protection, as it cannot protect from lawsuits by record companies and music publishers.^[42] In addition, some Attorneys claimed the offer of amnesty was misleading, and legal documents provided by the RIAA "provides ... no promise not to sue you."^[43]

[edit] References