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So
Sue Me
Last
week the Recording Industry Association of America announced
that it was ending its five-year reign of terror against its
own customers. Yes, the RIAA decided that it was going to
stop suing people that its “investigators” had “detected”
making music files available for others to download over the
Internet.
Since 2003, the RIAA has jammed up over 35,000 people—college
kids, mostly—for using peer-to-peer online services like Limewire
and Grokster to acquire music. Letters were sent demanding
quick “settlement” payments of three or four thousand dollars
or face a legal hell of scorched-earth litigation from high-priced,
faraway law firms, with the downloaders’ potential liability
in the millions. Legally, the RIAA’s claims have always been
on shaky grounds, but the combination of an insane imbalance
of legal resources, a rational unwillingness of people to
be legal guinea pigs, and a few lazy judges has kept the RIAA’s
extortionate scheme viable.
So why has the RIAA pulled the plug? Well, maybe it determined
that it was a really stupid idea to begin with. This is an
industry with precipitously falling sales, that is holding
on to some romantic notion of relevancy left over from the
1960s, and now finds itself universally reviled for its bullying
and arrogant behavior. And the lawsuits were not working,
anyway, as more files than ever are being moved around the
Internet for free, and probably even more are being moved
around the so-called “sneakernet.” Like the 40,000 songs on
the hard drive a friend just made me borrow a few weeks ago.
Like the DVD-R with 1500 obscure ’60s tracks another friend
mailed me a few months ago. Maybe the RIAA just needs a hug.
And a new business plan.
Or maybe the RIAA is falling apart. With member companies
hemorrhaging money and with stock valuation tanking, perhaps
the notion of mass lawsuits against the general citizenry,
which reportedly cost a lot more money than they bring in,
is seen as an expendable business strategy. There have been
rumors for months that EMI, the smallest and most vulnerable
of the major labels, was angling to leave the RIAA for just
this reason.
Maybe the RIAA sees the door closing. After five years of
essentially a free legal ride, there are a couple of cases
out there where the victims are fighting back, with the help
of organizations like Harvard Berman Center and the Electronic
Frontier Foundation. And it appears that in these cases, the
judges are finally taking hard looks at the legal issues involved,
as well as the fundamental fairness of the RIAA’s lawsuits.
Interesting, the RIAA has not said that it will seek to discontinue
any of its ongoing lawsuits, and it should be noted that for
any lawsuits in which a defendant has responded with a court
filing, the RIAA can’t unilaterally end the case anyway. All
it takes is one or two adverse rulings, and the RIAA’s cruel
and ridiculous playhouse falls apart. And then the class-action
attorneys, representing the 35,000 victims, move in, and suddenly
there’s a new sheriff in town.
Of course, we could consider the RIAA’s stated reasons for
discontinuing the lawsuits, although this should be the avenue
of last resort. This is an organization with a tenuous relationship
with the truth. In announcing the end of the lawsuits, the
RIAA spokesman said no new lawsuits had been filed “in months”
when in fact new suits had been filed regularly right up to
mid-December. Another RIAA gasbag said the now-abandoned lawsuit
strategy was the industry’s “only option,” a typically oblivious
observation from a group of companies that failed to develop
a digital strategy, engaged in price-fixing and payola and
copyright abuse, and are now staring down a long tunnel of
almost-certain and soundly deserved continued decline.
Now, the RIAA claims that it’s “changing direction,” and will
somehow work with your Internet service companies (ISP’s)
who will “help” the RIAA police suspected downloaders. Word
is that some kind of deal is being hammered out with the “assistance”
of New York Attorney General Andrew Cuomo.
As there’s been no official word from Cuomo or any ISPs on
this yet, we can only rely on rumor and speculation, but rumor
and speculation come from somewhere, right? The talk is that
Cuomo’s leaning on the ISP’s to implement some sort of “three
strikes” policy, where your Internet connection will be disconnected
if you are “suspected” of downloading too much stuff. Exactly
how and who determines this is unknown. Will your activities
be monitored? Well, apparently yes, somehow. And then what
kind of due process will you have? Who knows? Like Santa Claus,
your ISP will know if you’ve been bad or good, so be good
or no Internet for you!
This is ultimately scarier than 35,000 random lawsuits. This
is serious. For all his faults, former AG Eliot Spitzer blew
the doors off the major labels’ payola practices, and used
the penalty money to create a massive music fund which has
significantly enriched our culture ever since with grants,
commissions and awards to musicians and music organizations.
Why then is Andrew Cuomo coddling the same industry by allegedly
strong-arming ISP’s to be the music industry’s enforcement
cops? Is this what we pay him for? Doesn’t he have better
things to do? Like, I dunno, fight crime?
—Paul Rapp
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