[Infowarrior] - After 5 Years of RIAA Litigation .....

[Richard Forno]

File Sharing Lawsuits at a Crossroads, After 5 Years of RIAA Litigation
By David Kravets EmailSeptember 04, 2008 | 5:55:39 PMCategories: RIAA  
Litigation

http://blog.wired.com/27bstroke6/2008/09/proving-file-sh.html

It was five years ago Monday the Recording Industry Association of  
America began its massive litigation campaign that now includes more  
than 30,000 lawsuits targeting alleged copyright scofflaws on peer-to- 
peer networks.

The targets include the elderly, students, children and even the dead.  
No one in the U.S. who uses Kazaa, Limewire or other file sharing  
networks is immune from the RIAA's investigators, and fines under the  
Copyright Act go up to $150,000 per purloined music track.

But despite the crackdown, billions of copies of copyrighted songs are  
now changing hands each year on file sharing services. All the while,  
some of the most fundamental legal questions surrounding the legality  
of file sharing have gone unanswered. Even the future of the RIAA's  
only jury trial victory -- against Minnesota mother Jammie Thomas --  
is in doubt. Some are wondering if the campaign has shaped up as an  
utter failure.

"We're just barely scratching the surface of the legal issues," says  
Ray Beckerman, a New York lawyer and one of the nation's few who have  
taken an RIAA defendant's case. "They're extorting people -- and for  
what purpose?"

When the first round of lawsuits were filed on Sept. 8, 2003 --  
targeting 261 defendants around the country -- it was a hairpin turn  
from the RIAA's previous strategy of going after services like  
Napster, RIAA president Cary Sherman said at the time. "It is simply  
to get peer-to-peer users to stop offering music that does not belong  
to them." The goal in targeting music fans instead of businesses was  
"not to be vindictive or punitive," says Sherman.

Today, the RIAA -- the lobbying group for the world's big four music  
companies, Sony BMG, Universal Music, EMI and Warner Music -- admits  
that the lawsuits are largely a public relations effort, aimed at  
striking fear into the hearts of would-be downloaders. Spokeswoman  
Cara Duckworth of the RIAA says the lawsuits have spawned a "general  
sense of awareness" that file sharing copyrighted music without  
authorization is "illegal."

"Think about what the legal marketplace and industry would look like  
today had we sat on our hands and done nothing," Duckworth says in a  
statement. (The RIAA declined to be interviewed for this story.)

Casey Lentz, a 21-year-old former San Francisco State student, is  
among those caught in the RIAA's PR campaign.

"They're harassing me nonstop," says Lentz, who's been trying to  
settle her RIAA case, but can't afford a lawyer. "I wasn't the one who  
downloaded the music. It was a shared computer with my roommates and  
my friends. They want $7,500 for 10 songs."

"I told them I only had $500 in my bank account. And they said 'no  
way,'" she says.

Despite a fallow legal landscape, most defendants cannot afford  
attorneys and settle for a few thousand dollars rather than risk  
losing even more, Beckerman says. "There are still very few people  
fighting back as far as the litigation goes and they settle."

"It costs more to hire a lawyer to defend these cases than take the  
settlement," agrees Lory Lybeck, a Washington State attorney, who is  
leading a prospective class-action against the RIAA for engaging in  
what he says is "sham" litigation tactics. "That's an important part  
of what's going on. The recording industry is setting a price where  
you know they cannot hire lawyers. It's a pretty well-designed system  
whereby people are not allowed any effective participation in one of  
the three prongs in the federal government." Riaapic_2

Settlement payments can be made on a website, where the funds are used  
to sue more defendants. None of the money is paid to artists.

The quick settlements have left largely unexamined some basic legal  
questions, such as the legality of the RIAA's investigative tactics,  
and the question of what proof should be required to hold a defendant  
liable for peer-to-peer copyright infringement

In two cases, judges have ruled that making songs available on a peer- 
to-peer network does not constitute copyright infringement -- the RIAA  
has to show that someone actually downloaded the material from a  
defendant's open share folder. One of those cases is still mired in  
pretrial litigation. In the other, an Arizona judge issued a $40,000  
judgment last week in favor of the recording industry, after learning  
the defendant tampered with his hard drive to conceal his downloading.

The so-called "making available" issue also emerged, belatedly, in the  
only RIAA file sharing lawsuit to go to trial: the case against  
Thomas, a Minnesota mother of three, who was slammed with a $222,000  
judgment last year for sharing 24 tracks in her Kazaa folder.

Months after the Duluth, Minnesota jury's October verdict, U.S.  
District Judge Michael Davis called the lawyers back to his courtroom.  
He said he likely committed a "manifest error" in the case by  
instructing (.pdf) the jury that merely offering music was infringement.

Judge Davis is expected any day to declare a mistrial in the case, and  
rule that the Copyright Act demands a showing of an actual "transfer"  
of files from Thomas' share folder. If that line of reasoning is  
followed elsewhere, it endangers a key prong of the RIAA's litigation  
strategy. The association believes it is technically impossible to  
prove that files offered on a peer-to-peer user's shared folders were  
actually downloaded by anyone besides its own investigators. "It's all  
done behind a veil," RIAA attorney Donald Verrilli Jr. argued in the  
Thomas case last month.

That doesn't mean the RIAA would be dead in the water. The recording  
industry could try to prove, through forensic examination, that the  
shared files were pirated to begin with, i.e., that the defendant  
infringed copyright law by downloading the music, before sharing it  
again. It's also possible the courts will find that -- as the RIAA has  
argued -- downloads by the RIAA's investigators can be considered  
infringement by the file sharer; digital rights advocates counter the  
recording industry should not be able to pay investigators to make  
downloads of its own music, and then declare them unauthorized copies.

The RIAA's investigative tactics have come under attack as well. In a  
few states -- Michigan, Texas, Florida, New York, Massachusetts,  
Oregon and Arizona -- state governments and RIAA defendants have  
challenged the qualifications of the private company that develops the  
music industry's cases.

MediaSentry -- aka SafeNet -- specializes in logging into peer-to-peer  
networks, where it downloads some music, takes screenshots of open  
share folders and documents the offending IP address. The RIAA's  
position is that the online sleuthing isn't covered by state laws  
regulating private investigators. But Michigan (.pdf) recently  
disagreed, and told MediaSentry it needed a private investigator's  
license to continue practicing in that state.

Against that shifting legal backdrop, a handful of universities,  
including the University of Oregon, have begun refusing to divulge  
students' names in file sharing lawsuits, on privacy grounds.

Nobody can credibly dispute that file sharing systems are a  
superhighway for pirated music. "There is no doubt that the volume of  
files on P2P is overwhelmingly infringing," says Eric Garland,  
president of Los Angeles research firm BigChampagne. But critics of  
the RIAA say it's time for the music industry to stop attacking fans,  
and start looking for alternatives. Fred von Lohmann, a staff attorney  
with the Electronic Frontier Foundation, says the lawsuits are simply  
not reducing the number of people trading music online.

"If the goal is to reduce file sharing," he says, "it's a failure."