[Infowarrior] - RIAA: "we have no choice" but to file more named lawsuits

[Richard Forno]

http://arstechnica.com/tech-policy/news/2009/05/riaa-we-have-no-choice-but-to-file-more-named-lawsuits.ars

RIAA: "we have no choice" but to file more named lawsuits

The RIAA said it would file no more "new" lawsuits against individual  
file-swappers, but it filed more such lawsuits in April. How to  
explain the apparent contradiction? By defining "new" in a particular  
way.
By Nate Anderson | Last updated May 6, 2009 9:34 AM CT

The RIAA's lawsuit campaign against individual file-sharers never  
quite seems to wrap up, and as long as the music labels continue  
filing their suits, stories about how the RIAA is a lying collection  
of lying liars (who lie) aren't going to die either.

Such a story came yesterday from Ray Beckerman, the lawyer who runs  
the Recording Industry vs. The People blog. Beckerman noted that the  
music labels had filed new cases in April, despite their claim to  
Congress (and Ars) that they had stopped "initiating new lawsuits" in  
August 2008. That claim, says Beckerman, was a "total fabrication,"  
and the continued court filings prove it.

There aren't many of these "new" cases; Beckerman found three in New  
York. But why are they being filed at all?
It depends on what "new" means

The answer remains (as it has every time we've covered this issue)  
that the RIAA did not pledge to stop filing legal documents. The  
group's own definition of "new cases" does not include those that were  
already in process as "John Doe" cases or where settlement letters had  
already gone out.

This was the case in March, when the RIAA filed a case against an  
Omaha resident for file-swapping. Those hypocrites! But the case had  
been detected in 2007, a John Doe lawsuit was filed months later, and  
once the necessary account information was subpoenaed from the ISP,  
the John Doe suit was replaced with a named lawsuit in March 2009.

An RIAA spokesperson told us at the time that the issue was about  
fairness (though we raised some obvious questions about just how fair  
it was). "We're obviously pleased to transition to a new program going  
forward but that doesn't mean we can give a free pass to those who  
downloaded music illegally in the past," we were told. "How fair would  
it be to the thousands of individuals who took responsibility for  
their actions and settled their case while others are let off the  
hook? We're still in the business of deterrence and it must be  
credible."

We checked in with the RIAA about the cases filed in April and were  
told that the group is "making a diligent, good faith effort to settle  
existing cases (see Santangelo, for example). But in instances where  
the defendant flat-out refuses to accept responsibility for their  
actions and settle, or ignores repeated overtures, we have no choice  
but to move forward with the legal process. As we have said since  
December, no new cases are being filed."

The lawyers we've spoken with don't see any legal necessity for the  
labels to continue with these cases, but the labels have decided that  
they will press ahead with them, regardless.
The interesting questions

It does make one wonder just how many more of these lawsuits could yet  
be filed or converted to named suits. The RIAA has terminated its  
relationship with P2P investigator MediaSentry, but it appears to be  
reserving the right to bring every case identified by MediaSentry to  
completion. Most such cases are settled for a few thousand dollars,  
but we don't know how many outstanding cases there might be.

But the truly interesting question isn't about whether the RIAA will  
file a couple dozen more named lawsuits in the upcoming months—nor  
about whether the group will be "hypocritical" when it does so. No,  
the interesting questions are about whether existing lawsuits like the  
Joel Tenenbaum and Jammie Thomas cases will deal the legal campaign a  
fatal blow in court, and about just how well the RIAA is doing at  
lining up ISPs for its voluntary graduated response program.

This, after all, is the future as the RIAA sees it. The lawsuits are  
the past, but "three strikes and you're off the Internet" offers a way  
forward. Unfortunately for the music labels, ISPs are supremely  
skeptical. We give the idea a few more months before the labels  
basically abandon the voluntary approach and try to lean on Congress— 
probably the only realistic way to convince ISPs to disconnect paying  
customers.

But as the Time Warner Cable data caps issue showed, nothing makes the  
grassroots angrier than a massive corporation interfering with their  
Internet. And nothing gives a Congressman or Senator more incentive to  
stand up to corporations than an angry mob of voters.