Instead of trying to shutter P2P networks and outlawing a blossoming form of technology, the RIAA's lawyers should sue the specific individuals who were violating copyright law, groups such as the Electronic Frontier Foundation and Public Knowledge suggested.
In April 2002, EFF staff attorney Fred von Lohmann suggested that "a few targeted lawsuits would get the message across." von Lohmann also said that P2P users "are the ones who are the alleged pirates. If this fight were really about stopping piracy, you would have expected some pirate to actually be sued."
Now that RIAA has called that bluff and announced it will in fact start suing some of the more swap-happy P2P pirates as soon as next week, civil liberties groups are less supportive of the idea. With the threat of lawsuits looming, the EFF is now on the pulpit deriding heavy-handed litigation tactics and handing out how-not-to-get-sued advice on its Web site.
A change of tune? Nope, says Wendy Seltzer, an attorney for the San Francisco-based nonprofit group. "Those quotes are half the story Fred was saying at the time," Seltzer says. Suing individuals is "at least a more appropriate direction for their lawsuits, but it has the potential to turn all those people who are accused of direct infringement into critics of the system."
It's not just EFF. Public Knowledge, a Washington, D.C.-based group that is an ardent RIAA foe, also talked up the idea of suing individuals--but apparently no longer endorses the idea.
Last September, Gigi Sohn, the group's president, told a House Judiciary subcommittee that: "An industry-initiated lawsuit against a large-scale infringer could also have the benefit of serving as a deterrent to other bad actors. As we have seen in other contexts, specifically targeted lawsuits and other legal action can have a deterrent effect, and also educate the public as to what is legal."
Mike Godwin, a staff attorney with Public Knowledge, said the only reason his colleague mentioned private lawsuits was because the RIAA was targeting P2P networks. "The RIAA was saying we need more laws or new laws. Gigi said, 'Look you have this and you have a whole bunch of other tools as well, including passive spoofing and new business models...' You've got the tools you need in existing law.' That was what the thrust of the hearing was about."
A second PR challenge
The turn of events shows how far the conventional wisdom has come since Napster first converted millions of ordinary citizens into copyright scofflaws.
Suits against the public might be the legitimate legal recourse, but they could only backfire in the court of public opinion, the thinking went at the time--and still goes in some circles.
But the civil libertarians may have got this one right. Now that the RIAA has steeled itself for the worst, the downside of suits seems surprisingly less frightening to the industry than it once did--particularly if they can cherry-pick unsympathetic defendants.
To be sure, the RIAA attorneys have to worry about getting some egg on their faces when they kick off their lawsuit campaign. It's not the legal strategy that's at risk. After all, sharing hundreds or thousands of copyrighted MP3 files really does violate U.S. law.
Instead, what the RIAA's lawyers and lobbyists fear, they admitted in private conversations at a conference in Aspen, Colo., last week, is a public backlash. They're worried about what happens if, for instance, they accidentally sue some 13-year-old cancer patient who's unlawfully downloading music as a way to relieve the pain of chemotherapy.
Ouch. That may be a cold-blooded way of thinking, but it is understandable. Public opinion is becoming increasingly, and appropriately, critical of the RIAA and the companies that pay its bills--and that's even before they head into court. (Although the RIAA counts over 100 members, the ones that matter are the five big record labels, namely Universal, Warner, BMG, Sony and EMI.)
Last week, for instance, the RIAA was forced to reassure Sen. Norm Coleman, R-Minn., that it would only target the most flagrant violators of copyright law. "RIAA is gathering evidence and preparing lawsuits only against individual computer users who are illegally distributing a substantial amount of copyrighted music," wrote Cary Sherman, the RIAA's president.
Identifying only the most prolific infringers is the easy part. On Kazaa and some other file-sharing services, any user can peruse the contents of any other user's shared folder. With that information in hand, it's trivial for the RIAA to prioritize the names it's collected after firing off over 1,000 subpoenas invoking the Digital Millennium Copyright Act (DMCA).
What's not as trivial is puzzling out which people on that unenviable list should be eventually named as defendants in the lawsuits. Imagine the negative fallout if RIAA ends up suing a family member of Rep. Lamar Smith, R-Texas., who chairs a crucial copyright subcommittee--or a music industry executive who secretly hangs out on Grokster every evening.
Megan Gray, an attorney in Washington who sues copyright infringers for a living, says the RIAA is likely to use private investigators to winnow the list down to desirable defendants.
"That's the whole point of why they're doing the DMCA subpoenas," Gray says. "They get the person's identity, where they live, and they hire a private investigator. It happens all the time. It is very common in infringement lawsuits to conduct an investigation of the defendant prior to suing them."
Gray adds: "They're going to cherry-pick the most unsympathetic defendants. You don't want someone on TV looking like cherubic Heidi or with a record like Mother Teresa. You want a skanky pimple-scarred gangbanger."
Godwin, the lawyer from Public Knowledge, is even more emphatic: "They want to determine that the defendant has a lot of piercings and a tattoo. Preferably unemployed, dropped out of college, has lice and bad beard maintenance, and he's somehow using the MIT broadband network to distribute this to pirates in the Pacific Rim. That would be the perfect RIAA defendant."
That's the way lawyers think when they want to win a case. It's also why the RIAA employed the DMCA subpoenas in the first place.
If all the RIAA wanted to do was sue the people with the fattest MP3 collections, they could file suit with "John Doe" named as a defendant and figure out who it was later--they wouldn't need the DMCA. But the DMCA's turbocharged subpoena process lets them glean names from Internet service providers and universities without risking the consequences of suing an unknown person.
For its part, the RIAA denies it has hired private investigators. "We're not doing that," spokeswoman Amy Weiss said. "From a PR perspective, we know that this program is not going to win us any PR points. We're doing it because it's the right thing to do and to send a deterrent message and curb piracy on the Net. We are looking at the most egregious infringers and those are the people who will be sued."
Weiss said the RIAA will file its "first wave" of lawsuits in early September against hundreds of individual defendants, in multiple federal courts across the country. Other waves will follow, she said.
Is it a lot of fuss over still-to-be-filed lawsuits targeting P2P pirates? Yes, it is. But it'll pale by comparison to what happens if the Justice Department uses the 1997 No Electronic Theft Act to prosecute P2P users for criminal violations of copyright law--a step the RIAA has suggested, but the Bush administration has not yet taken.
Declan McCullagh is CNET News.com's chief political correspondent. He spent more than a decade in Washington, D.C., chronicling the busy intersection between technology and politics. Previously, he was the Washington bureau chief for Wired News, and a reporter for Time.com, Time magazine and HotWired. McCullagh has taught journalism at American University and been an adjunct professor at Case Western University.