A Music (Industry) Gift for the Holidays?

Finding its model of suing individuals accused of illegal file sharing to be both publicly damaging and politically annoying, the Recording Industry Association of America (RIAA) has announced a shift in strategy. No longer will it sue individuals directly as a level of first recourse; instead, the RIAA will inform Internet Service Providers (ISPs) of the IP address of users the RIAA suspects of downloading files the user has not paid for.

The public relations damage has been significant, with the RIAA filing more than 30,000 lawsuits against users—and, in some instances, parents of users—that have led to a few wins for the RIAA as well as a number of cases publicized in which the accused did not own a computer. While advocating for the benefit of these initial suits (the RIAA cites data from NPD that shows a stable percentage of users performing "file sharing" at around 19%) the RIAA acknowledges that the number of files shared has grown significantly while the number of CDs sold has declined over a five year period.

The current cache of lawsuits will continue forward unabated, according to a recent Wall Street Journal article, but the RIAA hopes this new move—in which it is asking ISPs to deliver warning letters to the IP address of suspected file sharers, along with a request to throttle the user speeds of the accused—will raise public awareness.

"Over the course of five years, the marketplace has changed," said RIAA Chairman Mitch Bainwol. "Part of the issue with infringement is for people to be aware that their actions are not anonymous."

While it is uncertain why the RIAA's request to send letters to accused users would do any more to heighten awareness of what the RIAA dubs as piracy than the lawsuits have done, the RIAA seems to be aware that the number of lawsuits it has filed has generated political fallout.

In fact, the political fallout reached a level at which the New York State Attorney General's office got involved. The RIAA was working to get individual ISPs to buy into its letter-delivery campaign, but attorney general Andrew Cuomo began brokering a deal to bring multiple ISPs into the process, as a way to end RIAA lawsuits.

"The litigation is not helpful," said attorney general Cuomo's chief of staff, Steven Cohen. "We wanted to end it."

The proposed letter has the sound of a public service announcement, except that it both assumes the guilt of the accused, and serves a dual purpose of serving notice to the ISP itself.

"I am contacting you on behalf of the Recording Industry Association of America, Inc. (RIAA) and its member music companies," the letter starts, adding, "The RIAA is a trade association whose member companies create, manufacture, and distribute approximately ninety (90) percent of all legitimate music sold in the United States."

While the letter states at its outset that the RIAA believes "a user on your network is offering an infringing sound recording for download through a peer to peer application," the letter then shifts immediately to a stance of illegality, noting the RIAA's request that the ISP provide "immediate assistance in stopping this illegal activity. Specifically, we respectfully request that you remove or disable access to the unauthorized music."

It is uncertain whether the ISP’s receipt of the letter from the RIAA—and passing it along to the accused user—represents the ISP’s acquiescence to the statement of illegal activity. If the user takes exception to being told they are engaged in illegal activity, the ISP’s actions could open it up to defamation litigation.

"Please bear in mind that this letter serves as an official notice to you that this network user may be liable for the illegal activity occurring on your network," the letter continues.

As mentioned above, one of the issues raised during the current round of lawsuits is that of the RIAA's choice to sue anyone attached to a particular IP address. A federal appeals court in 2003 ruled against the RIAA's use of subpoenas to force an ISP to reveal the identity of a user based solely on the IP address that the RIAA had gathered.

"We are not unsympathetic either to the RIAA's concern regarding the widespread infringement of its members' copyrights," the appeals court wrote at that point, adding "it is not the province of the courts, however, to rewrite (copyright law) in order to make it fit a new and unforeseen Internet architecture, no matter how damaging that development has been to the music industry."

After that ruling, the RIAA was forced to file what are termed John Doe suits, where the name of the accused is not owned. There had been speculation at that time that the RIAA's task would become more difficult, and it appears that the storm of public sentiment, political annoyance, and the need to file lawsuits against solely an IP number may be slowing down the RIAA's litigation process considerably.

In essence, the shift in RIAA strategy now puts the onus on the ISP to comply with the takedown request. Yet, for all the lessening of legwork this new strategy will provide the RIAA, the association is opting to maintain its ability to start up the spate of lawsuits again.

"This letter does not constitute a waiver of our members' rights to recover or claim relief for damages incurred by this illegal activity," the letter states, "nor does it waive the right to bring legal action against the user at issue for engaging in music theft."

Even proponents of the RIAA's intent question the veracity of the widespread lawsuit binge the RIAA has generated over the last five years, even beyond the desire in political circle to end the "unhelpful" lawsuits.

"It has become abundantly clear that the carrot is far more important than the stick," said Eric Garland, president of piracy consulting company BigChampagne LLC," and there isn't any silver-bullet anti-piracy solution."