Recording Industry vs The People

Ty Rogers and Ray Beckerman, two lawyers from New York, have a blog Recording Industry vs The People which records the legally dubious war being waged by the RIAA against music fans and computer users -- with, it seems, the full approval of the US Department of Justice.

Of particular note is How the RIAA Litigation Process Works.

In a nutshell, the RIAA plays fast and loose with both the intent and letter of the law. Defendants are sued without any investigation, let alone evidence that they violated copyright. Defendants have included people who have never even used a computer, or have never engaged in illegal file-sharing. In many cases, no music downloading even took place. The RIAA games the system, turning it into a unfair case where the defendant is denied a fair trial.

On occasion, the RIAA's own technical witnesses have admitted that as far as they knew, the only downloads that ever took place off the defendants' computers were when they, the witness, copied files off the computer. You'd think that admission alone would be enough to sink the lawsuit, but in the lottery of the American justice system, not necessarily. Just because no crime took place doesn't mean that the defendant doesn't have to suffer for committing it.

Undoubtedly, there is illegal file-sharing taking place somewhere -- the RIAA hasn't invented that claim out of nothing. (They have however undoubtedly invented the figures they claim for financial losses due to file-sharing.) However, the lawsuits seem to be based on the idea that, since the crime of copyright infringement occurred somewhere, somebody has to be punished for it, and it is hardly necessary to bother making sure that the person punished is the person who committed the crime.

Unfortunately, it seems that between the DoJ taking the attitude that giant corporations like the RIAA can do no wrong, and individual judges with imperfect understanding of copyright law and even worse understanding of the technology involved, the RIAA has a nice little money-spinner going for them. In an example that is unusual only for the judge's honesty, in Interscope v. Duty, the judge denied the motion to dismissal, not because he agreed with the RIAA, but because he admitted he didn't understood the technology well enough to tell whether or not there was a case to answer.

I was going to say the lawsuits were a winner for the RIAA, but since the stated aim of the lawsuits is to discourage file-sharing, and file-sharing is even more prevalent now than before the lawsuits began, they certainly aren't having the effect the RIAA says they want. They are, however, bringing in a bucketload of money into the RIAA's coffers -- with absolutely no indication that one single cent of that money ends up being paid to the artists the RIAA claims to represent.

Also worth reading is Andrew Harden's warm-and-fuzzy guest op-ed, Between the RIAA and a Hard Place. Much of Harden's op-ed comes perilously close to soppy computer-hugging (which doesn't make it wrong, merely unconvincing to hard-headed politicians and judges) but, if nothing else, it is important for his explanation of why the RIAA's tactics threaten virtually every computer user in the world:

In the case of Elektra v. Barker, attorneys for the Recording Industry Association of America have made the argument that simply having a "Shared" folder on your computer can be considered grounds for infringement and, by extension, prosecution. [...]

The problem with this is that nearly every PC in use right now, running a modern operating system like, for example, Microsoft Windows XP, has a "Shared" folder on it. In fact, it might even have several. But you know who created these folders? Not the people using them, not some fiendish Internet pirates (sans eye patch and cool boat), but rather, Microsoft itself.

The RIAA has successfully fooled judges into imagining that "file-sharing" is just another word for "copyright infringement". But it isn't. The RIAA might like to believe that they are the only copyright holders in the world, but they aren't. File-sharing is just what it says: a way of sharing files between computers. It can be used to share your own files from one computer to another, which is not infringement, or it can be used to infringe copyright. It is dishonest of the RIAA's lawyers to suggest that the mere presense of file-sharing technology is evidence of a crime; and it will be disasterous if they get their wish to make it a criminal offence to even possess so-called "anti-circumvention" tools.