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RIAA Blowback

As Slate points out, if you're one of the more than 4 million people who use the KaZaA network on any given day you've a greater chance of being hit by lightning than being one of the 261 people the RIAA just sued. The RIAA's strategy all along has been cultural: scare people into not sharing, and "educate" the public that file sharing is an evil treat to our society's very survival. Whether these lawsuits (and the thousands more they plan to file) have a chilling effect will be seen over the next couple months. The battle for our hearts and minds, however, is not going so well for the RIAA.

So far the press has reported on a few members of the seamy file-sharing underworld. One is Brianna LaHara, a 12-year-old Catholic-school honors student who was "on the verge of tears when she found out about this." Another is Heather McGough, a 23-year-old single mom of two who got KaZaA when a friend of her 14-year-old cousin told her she could "get the Gateway to play songs." Then there's Durwood Pickle, a 71-year-old grandfather who says his teen-aged grandchildren use his computer during visits to his home. "I'm not a computer-type person," Pickle said. "They come in and get on the computer. How do I get out of this? Dadgum it, got to get a lawyer on this."

Each defendant is potentially liable for fines ranging between $750,000 and $150 million, though of course the RIAA is offering settlements. Brianna's mom has already accepted a quick settlement, paying $2000.

The reactions of the defendants have varied. Yale University photography professor Timothy Davis said he'll stop sharing music files immediately. "I've been pretending it was going to go away," Davis told reporters. "I'm not some kind of college student who's downloaded thousands and thousands of things. It isn't like I'm trying to broadcast these things anywhere." Most quoted in the news, however, have expressed frustration. "I can understand why the music industry is upset about this, but the fact that we had access to this as the public, I don't think gives them the right to sue us. It's wrong on their part," said Lisa Schamis, a 26-year-old from New York. Schamis added that she is unemployed and would be unable to pay any large fine or settlement. Her sentiment is shared by defendant Vonnie Basset, a bookkeeper in Redwood City, California. "How are we supposed to know it's illegal? Half the things on the Internet must be illegal then," said Ms. Basset, who says her 17-year-old son uses KaZaA. "Why don't they sue KaZaA? Why are they suing the people? That's the part I don't understand."

Marvin Hooker, a 39-year-old San Francisco bank employee, expressed the philosophy held by many. "To me, the way I see it, I am not taking anything from them," Mr. Hooker said. He compared downloading music to making a copy of music or a tape for friends. "I don't see people getting sued because of that," he said. Sylvia Torres, Brianna LaHara's Mom, put it more simply: "It's not like we were doing anything illegal. This is a 12-year-old girl, for crying out loud."

This is, of course, the exact message the RIAA wants to stamp out. But with such normal, mainstream defendants and such out-of-this-world potential fines, it's hard not to see the RIAA as the big bully extorting everyday citizens.

Attempts by the RIAA to soften the legal attack have met with a good deal of scorn. One attempt is their Clean Slate amnesty program, whereby the RIAA promises not to sue file-sharers who sign a notarized form admitting to copyright violation and promising never to do it again. But as the Electronic Frontier Foundation points out, the RIAA does not actually own any copyrights and member labels are not bound by any agreement they make. Furthermore, such admissions could be used by other rights holders to prove a sharer was a "willful infringer," which could lead to prison time.

Universal Music Group has even cut the price of a CD from $18.98 to $12.98, citing falling CD sales and, of course, piracy. Their olive branch to consumers, however, is being seen as too little, too late. Renee Graham, of the Boston Globe, writes:

In other words, after years of gouging customers, the recording industry is desperate. Sparked by Napster, and continued through such file-swapping services as KaZaA, Morpheus, and Grokster, the free-music revolution has left the major labels reeling and hemorrhaging. And CD prices, which despite promises to the contrary have steadily increased through the years, turned off even those who weren't inclined to sit at their computers downloading their favorite tracks.

In an article for The Register, Ashlee Vance points out that this is the first price cut since the CD format came out in the 1980s. At the time, the fact that CDs were a new format was used as an excuse to raise prices above LPs, with the promise that prices would drop as the new format became mainstream. She also points out that just two months ago a pair of music labels were yet again nailed for price fixing by the Federal Trade Commission.

None of this helps portray the music industry as a poor innocent victim, being picked on by wicked 12-year-old girls. As for the effect on file-sharing, I honestly hope that the RIAA's jihad has a chilling effect for a while. Each turn of the screw has unleashed new technology, from music webpages, to multimedia search pages, to Napster, to complete peer-to-peer file sharing. I keep hoping for one more forced revision to the technology before the music industry finally gets a clue. But I can guarantee who will win this battle in the end. A Forrester report released a few weeks ago reports that 49% of 12- to 22-year olds downloaded music last month. When it comes to pride, stubbornness and brazen pig-headedness, even the RIAA can't stand up to the combined will of millions of teenagers.

References

• An Offer You Can Refuse: The RIAA's amnesty deal may not keep you from being sued. (Paul Boutin, Slate, 8 September 2003)
• Hundreds of music swappers sued: Record industry follows up on threat of wider legal action (Associated Press, 8 September 2003)
• RIAA Lawsuit Offensive Begins (Lawrence Solum, Legal Theory Blog, 9 September 2003)
• 12-Year-Old Sued for Music Downloading (New York Post, 9 September 2003)
• RIAA's Lawsuits Meet Surprised Targets: Single Mother in Calif., 12-Year-Old Girl in N.Y. Among Defendant (Frank Ahrens, Washington Post, 10 September 2003)
• RIAA tries to rescue PR disaster with quick settlement (Joe Barr, NewsForge, 9 September 2003)
• RIAA settles with 12-year-old girl (John Borland, CNET, 9 September 2003)
• 261 Lawsuits Filed on Internet Music Sharing (Amy Harmon, New York Times, 9 September 2003)
• Clean Slate Program (RIAA, September 2003)
• Why the RIAA's "Amnesty" Offer is a Sham (Electronic Frontier Foundation, 9 September 2003)
• Retailers are counting on CD price cuts to help sales (Evan Pondel, Los Angeles Daily News, 8 September 2003)
• Lower CD prices may not be music to downloaders' ears (Renee Graham, Boston Globe, 9 September 2003)
• Universal's CD price cut comedy gets five stars (Ashlee Vance, The Register, 5 September 2003)
• Labels charged with price-fixing — again (Ashlee Vance, The Register, 29 July 2003)
• From Discs To Downloads (Josh Bernoff, Forrester Research, August 2003)
• FTC Finds Vivendi Subsidiaries Violated Antitrust Laws In Distribution of Three Tenors CDS (Federal Trade Commission, 28 July 2003)
• Record Companies Settle FTC Charges of Restraining Competition in CD Music Market (Federal Trade Commission, 10 May 2000)

Posted by bug to Intellectual Property at September 9, 2003 11:47 PM | TrackBack