Suing music fans a strategy that the RIAA began in 2003 has proven to be an ineffective response to unauthorized P2P file-sharing. Downloading from P2P networks is more popular than ever, despite the widespread public awareness of lawsuits. The RIAA lawsuit campaign has not resulted in any royalties to artists. One thing has become clear: suing music fans is no answer to the P2P dilemma.
Five years into the RIAA’s campaign, it has become all too clear (if there were ever any doubt) that suing music fans is not a viable business model for the recording industry. With courts, state watchdogs and the RIAA’s own members questioning the tactics of the campaign, it is time for the industry to embrace a new model that can help artists get paid and help fans access and share the music they love.
Education by Lawsuit: Lesson Learned and Ignored
The RIAA has frequently justified the lawsuit campaign as the most effective way to get music fans to understand that downloading is illegal and can have serious consequences. In the words of top RIAA lawyer, Cary Sherman, "Enforcement is a tough love form of education." There is some evidence to support this view. After all, in light of the early headlines in most major media outlets, it would be remarkable if the lawsuits had failed to increase awareness of the record industry’s view that file sharing constitutes copyright infringement. An April 2004 survey revealed that 88% of children between 8 and 18 years of age believed that P2P downloading was illegal. At the same time, the survey also discovered that 56% of the children polled continue to download music. In fact, the children surveyed were more concerned about computer viruses than about being sued by the record industry. Another April 2004 survey, this one focusing on college-bound high school students, found that 89% of high school students continued to download music despite believing that it was against the law. This number decreased slightly in a 2006 survey by Piper Jaffrey that found that of 79% of high school students who obtain their music online, 72% use P2P networks to do so. In short, the RIAA’s "tough love" message has been delivered, and largely ignored.
The "educational" value of the litigation campaign is also diminishing because it has become "business as usual." Media coverage of the continuing lawsuit campaign has largely dissipated, with stories about the lawsuits migrating from the front to the back pages to not being covered at all. Indeed, in early 2006 the RIAA gave up its monthly press releases announcing how many individuals were being sued.
If the goal of the RIAA was to increase awareness of the copyright laws, that mission has been accomplished, albeit at the expense of financial hardship to nearly 30,000 arbitrarily chosen individuals. But as press attention fades, the "bang for the buck" provided by suing randomly-chosen filesharers has diminished as well. In other words, if the lawsuits are to continue indefinitely, they cannot be justified as an "educational" measure.
Does it Work?
Has the arbitrary singling out of nearly 30,000 random American families helped promote public respect for copyright law? Have the lawsuits put the P2P genie back in the bottle or restored the record industry to its 1997 revenues?
While it is hard to precisely measure the use of P2P and the amount of illegal file sharing in the U.S., one thing is clear: after more than 30,000 RIAA lawsuits, tens of millions of U.S. music fans continue to use P2P networks and other new technologies to share music. The lawsuit campaign has not succeeded in driving P2P out of the mainstream, much less to the fringes, of the digital music marketplace. Moreover, by most accounts P2P usage is growing rapidly in the rest of the world, where the RIAA has not been able to replicate the scale of its lawsuits against Americans of all ages and backgrounds.
Over this time, P2P technology sites have made themselves less vulnerable to legal assault by expanding and drawing attention to legitimate uses of P2P technology. BitTorrent indexing site Isohunt.com, for example, has promoted public domain material, and has formed an alliance with Jamendo, an archive of Creative Commons-licensed music from a variety of independent musicians.
The RIAA’s lawsuit campaign against individual American music fans has failed. It has failed to curtail P2P downloading. It has not persuaded music fans that sharing is equivalent to shoplifting. It has not put a penny into the pockets of artists. It has done little to drive most filesharers into the arms of authorized music services. In fact, the RIAA lawsuits may well be driving filesharers to new technologies that will be much harder for the RIAA’s investigators to infiltrate and monitor.
What to do?
At this point, courts, state watchdogs and finally with the foresight of the Electronic Frontier Foundation (http://www.eff.org/wp/riaa-v-people-years-later#3) the RIAA’s own members can now understand the need to question the tactics of that campaign and as an industry look to embrace a new model that can help artists get paid and help fans access and share the music they love.
Given the lessons presumed to have been learned and now understood, how then can a revamped replay of this type of copyright litigation business model be considered an acceptable good faith use of our judicial systems? What RIAA’s campaign and this next round of copyright trolling lawyers like Righthaven who are going after bloggers have in common is that they seek to take advantage of copyright’s draconian damages in order to bully internet users into forking over money.
Maybe latency newspapers and the music industry will step up on behalf of the bloggers and the future of journalism to shut down this next round in overreaching “sue the audience” business model tactics which will surely burden our judicial system, destroy meaningful exploration and innovation of new business models that foster journalism and serve only the financial goals of the lawyers who will surely hide behind the transparent arguments of protecting the interests of clients they are soliciting and lobbing a practice long frowned upon in the legal profession.
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