The music industry's highly controversial strategy of suing customers for file sharing has mostly ended.
The Recording Industry Association of America said Friday that it no longer plans to wage a legal assault against people who it suspects of pirating digital music files. What the RIAA should have said, though, is that it won't go after most people who illegally file share. My music industry sources say that the RIAA will continue to file lawsuits against the most egregious offenders--the person who "downloads 5,000 or 6,000 songs a month is still going to get sued," a source at a major record company told me.
The strategy of suing music fans has long been criticized by artists, consumers, and even some record-label executives. Critics have said it alienates music buyers and more importantly has been ineffectual. Now, the music industry has a new form of protection: Internet service providers.
According to a story in The Wall Street Journal (subscription required), which broke the news about the RIAA's new strategy, unidentified Internet service providers have agreed to "reduce the service," to chronic file-sharers. Exactly what a reduction of service may include isn't specified, but a source close to the situation said that none of the ISPs have agreed to limit a user's bandwidth, a practice known as throttling.
The way the new enforcement system will work is that the RIAA will alert an ISP that a customer appears to be file sharing. The ISP will then notify the person that he or she appears to be file sharing. If the behavior by the customer doesn't change, then more e-mails will be sent. If the customer ignores these e-mails, then the ISP may choose to suspend the person's service. If all else fails, they can choose to discontinue service.
Under the plan, which was brokered by New York State Attorney General Andrew Cuomo, the music industry will not know the customer's identity. What this means is that ISPs have now gone into the enforcement business, and this has always been one of the greatest fears of those who have wanted ISPs to remain neutral.
"This is very troubling," said Cindy Cohn, legal director for the Electronic Frontier Foundation, a group that advocates for Internet rights. "Creating lists of people who can't get Internet access based on allegations of breaking a law that hasn't been evaluated in a court of law. It's good that that the (RIAA) wants to stop suing individuals but they should haven't done it in the first place. I'd be especially concerned if the music labels can get you kicked off one ISP and then arrange to get you kicked off others, or the creation of blacklists. That's certainly what our fears have been about private legal enforcement regimen."
Was litigating against file sharers an effective deterrent? That depends on who you ask. To many music fans, the practice was a loathsome and heavy-handed approach that only served to inspire people to resist efforts to keep them from obtaining music. To those in the music industry, it helped alert the public following the Napster era--when many consumers believed there was nothing wrong with sharing music files--that pirating music harmed artists and record stores, and was also against the law.
But according to most of the data, the lawsuits didn't prevent illegal file sharing from growing. At the same time, the strategy also alienated scores of potential music buyers.
The truth is that the music industry no longer needs the RIAA to chase after large numbers of file sharers. Sure, music piracy still thrives but is less and less about the mainstream. The industry has learned that the answer to piracy isn't to intimidate people into obtaining music legally. The recording companies have made music available in ways that actually appeal to consumers.
If people don't want to pay for music, they can go to MySpace Music, YouTube or iMeem and listen to all the ad-supported streaming songs they want. And a huge number of digital music fans are willing to pay for songs at iTunes.
You can bet the ISP deal is going to be controversial one, but before going on to the next fight, I think music fans should celebrate the end of a dark period in the industry's history.