Sunday, December 11, 2005

On RIAA suing its customers

The Day the Music Died: The RIAA Sues Its Consumers appears in 38 Ind. L. Rev. 239 (2005).

The article notes Many commentators had predicted that the RIAA would never bother going after individual users due to the potential public relations nightmare it could create, along with the logistical difficulties posed by finding and suing individual users. citing to Peter Jan Honigsberg, The Evolution and Revolution of Napster, 36 U.S.F. L. Rev. 473, 490 (2002); Aric Jacover, Note, I Want My MP3! Creating a Legal and Practical Scheme to Combat Copyright Infringement on Peer-to-Peer Internet Applications, 90 Geo. L.J. 2207, 2246 (2002); Jennifer Norman, Note,
Staying Alive: Can the Recording Industry Survive Peer-to- Peer?, 26 Colum. J.
L. & Arts 371, 392 (2003).

The article states: The fact of the matter is that there are millions of consumers today who download copyrighted music from Internet related services without paying anything for it. Legislation in and of itself will not correct this situation because the process is outpaced by technological advances. Similarly, copy protection devices employed by the music industry have been simple to circumvent and raise serious privacy issues. Subscription sites that charge consumers to download song-files have not received the support of the music industry's major players, primarily due to the fact that there is nothing to stop individuals from downloading for free. Compulsory licensing schemes could turn into a logistical nightmare and do not offer safety from hackers and others. Instituting a tax scheme is the simplest way to alleviate this conflict.

A different law review article states:

It turns out that suing P2P users is not a bad idea. The downside of suing P2P users was always misunderstood and there appears to be a substantial upside, at least for now. This provisional conclusion is reached by sifting through a large number of reports, stories, surveys, and statistics - the kind of bewildering array of materials that confronts a policymaker trying to figure out the reality of P2P's
impact on the music industry - but without engaging in any original
empirical work or scrutinizing the methodology of each study and each survey.

The article also says:

It also looks like the lawsuits are increasing awareness of
copyright law. In an April 2004 survey of eight to eighteen year-old Americans with Internet access, 85% of respondents said they knew that most popular music is copyrighted, but 56% continued to download.n33 You can look at this two ways. Optimistically for the record companies, awareness of copyright appears to have
risen dramatically. Pessimistically, compliance with the law is still
an enormous problem. Presumably, if awareness of a law has risen
dramatically, but compliance has not, the law enters a window of vulnerability where compliance must rise or the law will fall into disrespect. (It was not disrespected when no one knew about it.)

The media attention has been a public relations coup, sending a shiver of fear into any parent who is not judgment-proof. "Music piracy suits hitting home" was a November 2004 Miami Herald headline. n35 The people who promote parent-child discussions about drugs must have become intensely jealous: the RIAA lawsuits woke many parents up to the fact that the PC might look like a TV, but it is not.

In the midst of all this argumentation, the recording industry gets
to point to one over-riding fact: U.S. record sales started rising just a couple months after hundreds of user lawsuits were launched to much fanfare and controversy. The lawsuits start in the summer of 2003, "the rebound began in earnest in September 2003," and U.S. album sales were up 5.8% in the first nine months of 2004 compared to the first nine months of 2003.n67 Is there a causal relationship between bringing legal liability home to downloaders and people returning to the music stores? For the moment, the bulk of the evidence - all of it indirect (and perhaps permanently so) - is that "the industry is not
crying wolf."n68


Of prior conventional wisdom about suing customers, Hughes has a footnote:

Lisa M. Bowman, Labels Aim Big Guns at Small File Swappers, CNET (June 25, 2003) (Radcliffe, a partner at Gary Cary Ware & Freidenrich, which is based in Palo Alto, California, stated, "it's obviously a high-risk strategy, because you're suing your own customers."), at; see also Sean Silverthorne, Music Downloads: Pirates - or Customers?, Harvard Business School Working Knowledge (June 12, 2004) (quoting Felix Oberholzer-Gee as saying "suing potential customers is not exactly a standard entry in the book of good CRM" (customer relationship management)), at
&t=innovation (last visited Jan. 31, 2005). In another variation, Jeff
Tweedy of the band Wilco says "treating your audience like thieves is absurd." Xeni Jardin, Music is Not a Loaf of Bread, Wired News (Nov. 15, 2004), at,1294,65688,00.html.

**UPDATE. 2008++

Why the Recording Industry Really Stopped Suing Its Customers


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