September 8, 2003 10:57 AM PDT

RIAA sues 261 file swappers

The Recording Industry Association of America said it has filed 261 lawsuits against alleged file swappers Monday, charging the computer users with "egregious" copyright infringement potentially worth millions of dollars.

The long-awaited barrage of lawsuits marks a turning point in the industry's three-year fight against online song-trading services like Kazaa and the now-defunct Napster, and one of the most controversial moments in the recording industry's digital history.

After long years avoiding direct conflict with file swappers who might also be record buyers, industry executives said they have lost patience. Monday's lawsuits are just the first wave of what the group said ultimately could be "thousands more" lawsuits filed over the next few months.

"Our goal is not to be vindictive or punitive," said RIAA President Cary Sherman. "It is simply to get peer-to-peer users to stop offering music that does not belong to them."

The lawsuits mark the first time that copyright laws have been used on a mass scale against individual Internet users. Legal actions have been taken on a sporadic basis against operators of pirate servers or sites, but ordinary computer users have never before been at serious risk of liability for widespread behavior.

The RIAA said that's the point it's underlining with the unprecedented legal action. From the rise of Napster until today, tens of millions of people have started trading songs, movies and software online through services such as Kazaa with little thought for the legality of their actions. Even as the threat of Monday's lawsuits loomed, more than 2.8 million copies of the Kazaa software were downloaded last week, according to Download.com, a software aggregation site operated by CNET News.com publisher CNET Networks.

Indeed, a recent study by the Pew Internet and American Life Project found that 67 percent of people downloading music said they did not care whether the music was copyrighted or not.

The slew of suits will put a serious price tag on those actions for the first time. Under copyright law, violators can be held liable for up to $150,000 per violation--a measure that could result in stunningly high damage figures for some of the defendants in this round of suits. According to the RIAA, most of the people sued Monday were sharing 1,000 songs or more on the file-swapping networks.

Few of the suits are likely to go to trial, however. In the RIAA's previous round of copyright suits, filed against four university students in April, each defendant quickly settled, agreeing to pay damages of between $12,000 and $17,000. Many of today's defendants are also likely to settle.

Sherman said "a handful" of defendants had already agreed to preliminary settlement agreements, averaging payments of about $3,000 apiece.

Later settlements will likely have a higher price tag, since they will be coming after the lawsuits have been filed, Sherman said. However, each suit is being filed with information advising defendants whom to contact if they want a settlement.

Attorneys not involved in the dispute say the defendants will be hard-pressed to make a convincing case if the RIAA's evidence holds up in court. The industry trade group has collected long lists of files being shared by each defendant, traced those files to a specific network address and used subpoenas to link that address to a specific Internet account.

Copyright law forbids distributing unauthorized copies of protected works, as well as actually making unauthorized copies. People who have shared considerable amounts of copyrighted files on file-swapping networks are likely to be seen as distributors, many attorneys say.

"This will be an uphill battle for anyone to defend," said Evan Cox, an intellectual property attorney with Covington and Burling in San Francisco. "When people put that many files in a shared folder and allow that to be exposed to the Internet, it's a pretty sure thing that they're distributing those copies."

Critics of the RIAA actions, including most notably the Electronic Frontier Foundation (EFF), said that the RIAA might have made mistakes in some cases, including those where an Internet subscriber's account is held by several people, where parents were unaware of their children's behavior or where the Net account is connected to a wireless network being made available to the public.

"You have to assume that the recording industry actually got the right person," EFF attorney Fred von Lohmann said. "It's Mom and Dad's name on the ISP account, for example, but that doesn't mean it's Mom and Dad using Kazaa. There are going to be a lot of complications."

The suits were filed across the United States, and included users of Kazaa, Blubster, Grokster and several other file-swapping software programs.

Several related lawsuits remain open as these go to court. A handful of Internet service providers, including Pacific Bell Internet Services, a division of SBC Communications, in California, have challenged the validity of the subpoenas used by the RIAA to collect file swappers' identities. One individual, who as yet remains anonymous, has also challenged the subpoena process, saying it violates her right to privacy.

Alongside the lawsuits, the RIAA also released details of an online amnesty campaign, offering worried file swappers a provisional shield against being sued if they turn themselves in before a suit is filed.

Under the "Clean Slate" program, file swappers must destroy any copies of copyrighted works they have downloaded from services such as Kazaa, and sign a notarized affidavit pledging never to trade copyrighted works online again.

Anybody who signs and returns the document will not be targeted by the RIAA based on past infringement, Sherman said. However, if their names come up in future file-swapping sweeps, any amnesty seekers could be liable for potentially higher damages based on "willful infringement."

The group said it would not use the information gathered for marketing purposes or share it with any other group of copyright holders. Critics such as the EFF's von Lohmann dismissed the assurances, saying that the RIAA's privacy policy allowed the information to be shared if "required by law," a clause which could allow groups such as music publishers or Hollywood studios to subpoena the information from the RIAA to use in their own lawsuits.

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