The New Red Scare

OK, Recording Industry Association of America. We get it. Downloading and sharing recorded music we haven’t purchased is considered stealing. And stealing is wrong. But filing potentially million-dollar lawsuits against kids and innocent people is wrong too.

Obviously, the RIAA does not agree with that last sentence. The organization is going forward with a second round of suits against people who allegedly downloaded an average of 1,000 copyrighted music files. This round will be a little different than the last one, in which 261 surprised parties suddenly found themselves served with legal papers charging them with criminal file sharing. This time, soon-to-be defendants are getting advance warning.

Last week, the RIAA sent letters to 204 people suspected of file swapping, according to the New York Times:

The decision to warn people before going to court was announced last month at a Senate hearing by Mitch Bainwol, the chairman and chief executive of the Recording Industry Association of America. Bainwol announced that change in response to Sen. Norm Coleman, R-Minn., who harshly questioned the industry’s legal tactics.

The new mailing, which went out in two batches on Monday and on Friday, shows that the music industry is neither slowing down nor backing off in its efforts to scare consumers away from copyright infringement

On Friday, an official of the recording industry group said that the message from lawmakers to proceed more cautiously had been received, and acted upon. “We take the concerns expressed by policymakers and others very seriously,” said Cary Sherman, the group’s president, and “we want to go the extra mile and offer illegal file sharers an additional chance to work this out short of legal action.”

“Our objective here is not to win lawsuits — it is to foster a business environment where legal online music services and bricks-and-mortar retail stores can flourish,” he said.

The first 261 lawsuits filed by the music companies last month drew criticism because they included targets like a 12-year-old honors student from New York, and a 66-year-old woman in Boston who said that she had never downloaded music. None of those defendants received notification prior to being sued; many found out about the suits when they were called by reporters.

The advance notice is indeed an improvement: As Cindy Cohn, legal director for the Electronic Frontier Foundation told the Times, “If these letters actually prevent the next Sarah Ward being awakened in the middle of the night by a process server, that’s a good thing. But that’s not the same thing as stopping this wrongheaded course.”

Ward, a Massachusetts educator, artist, and grandmother, was among the first group of suspects to be sued by the RIAA. The case against her was dropped when she proved that it was impossible for her to have downloaded and shared illegal MP3 files or anything else, for that matter: She didn’t have the necessary software on her computer.

Which, in part, points to why the RIAA’s lawsuit campaign is wrong: Desite the harsh tone of the letters, which hint that the recording industry group has all the proof it needs to win convictions against the accused, sometimes its evidence is flat-out wrong. And the stakes are high — under copyright law, the industry can collect $750 to $150,000 for each song file distributed. And we all know that in America, sometimes innocent people are found guilty.

“I’m particularly concerned about others who may not have the support I did to defend myself and clear my name,” Ward is quoted as saying in a Sept. 24 EFF press release. “And of course as a grandmother and teacher, I worry about a world where people don’t feel the need to apologize or make amends when they make a mistake.”

EFF staff attorney Jason Schultz added that the threat is real: “The recording industry will continue to catch — and terrify — innocent people like Sarah Ward in its dragnet as long as these lawsuits continue. What we need is a global solution that legalizes file-sharing, gets artists paid, and halts the recording industry’s litigation machine.”

The RIAA says its objective is not to win lawsuits. What, then, is the objective? To score some quick cash? To frighten the shit out of people, some of whom are very possibly, like Sarah Ward, innocent of wrongdoing?

And even if they are guilty, is it beneficial to anyone to bankrupt or jail the 60 million Americans EFF estimates are using file-sharing services? (The advocacy group notes that the number of US file-sharers is greater than the number of people who voted for Dubya Bush.) Yes, jail: Last summer, the Author, Consumer, and Computer Owner Protection and Security Act of 2003 (ACCOPS) was introduced before Congress; if passed, the bill would target file sharers for criminal prosecution, including jail time.

EFF says that instead of violating people’s privacy and civil liberties, taking their money, and threatening them with prison, the RIAA should focus on putting a system in place that allows people access to music while ensuring that artists and copyright holders are compensated. Says Schultz, “Throwing the book at music swappers makes great political theater, but jailing 60 million music fans is not good business, nor does it put a single penny into the pockets of artists.”

The Washington Times reports that the “sue ’em and scare’em” campaign may be having an effect, but then again, reductions in file sharing may be the result of other causes.

Michael Friedman, a lawyer who heads the entertainment practice at New York law firm Jenkens and Gilchrist LLP, said it is not clear how effective the recording industry’s legal tactics have been in reducing file sharing.

File sharing on the popular Kazaa peer-to-peer network fell almost 50 percent over the summer, prices for CDs have come down and consumers are migrating to legitimate online music sites such as Apple’s iTunes, Mr. Friedman said.

Research firm Nielsen/NetRatings said 7 million people used Kazaa’s file-sharing application during the week of June 1. The recording industry began to gather evidence about file-sharing activity on June 29. By Oct. 5, the number of people using Kazaa had fallen to 3.6 million.

So far, the RIAA says it has settled 64 suits, netting an average of $3,000 per settlement. That includes a $2,000 payment from the parents of the aforementioned 12-year-old suspect; her mother and father said they had no idea their daughter allegedly was spending her online time swapping rap MP3s with others. Thank heaven the ‘rents could come up with the cash to settle the case out of court.

Right now, some of the 204 letter recipients likely are scrambling to save themselves. The missives give the suspects 10 days to contact the RIAA to discuss a settlement and avoid suit. And this round won’t be the end of the campaign: The recording industry organization says it has filed at least 1,633 subpoenas to gather information about more suspected file sharers.

How many of those people are innocent of wrongdoing? RIAA spokesperson Jonathan Lamy told the Associated Press that only “proven, egregious offenders” are being targeted. Tell that to Sarah Ward.

Get ready for more fear and loathing.

Resource information from EFF:

How to avoid an RIAA lawsuit

A better plan for compensating artists

Legalizing peer-to-peer file-sharing technology

One more thing: The RIAA has offered an “amnesty plan” for those who have not yet been sued: Sign an admission of guilt and promise to never again file-swap, the organization says, and you’re off the legal hook. EFF says the offer is both bogus and potentially dangerous. Talk to an attorney before signing anything with RIAA letterhead.

And this, too: Blogcritics mentions a campaign to take action against the RIAA. Do check out the Web site.

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