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What Could the RIAA's Switch in Strategy Mean?

Evan D. Brown

The Wall Street Journal and others are reporting that the Recording Industry Association of America is adjusting its strategy for combating the massive infringement occasioned by the sharing of music files over the internet. Since 2003, that strategy has been to pursue copyright infringement cases against individual file sharers. The RIAA now says it will focus less on pursuing infringement litigation and more on working with internet service providers to shut down the accounts of individuals suspected of illegally trading files.

This is the third wave in the recording industry's attack on digital piracy:

  • First wave: The labels went after the purveyors of the software used in file sharing. There are reported decisions involving Napster, Aimster and Kazaa, not to mention the U.S. Supreme Court decision in MGM v. Grokster.
  • Second wave: The thousands of lawsuits against individual file sharers. Though it's said that the RIAA sued some 35,000 people, only one of those cases went through to verdict (the Jammie Thomas case). Most settled for a few thousand dollars.
  • Third wave: Rejection of the massive litigation model (announced today) and collaboration with ISPs to combat file sharing.

So what does this change in strategy tell us? Does it mean that the RIAA has given up and the file sharers have won? It's hard to tell. But there may be some insight to be had into the broader picture of digital copyright enforcement. Here are some observations:

  • The ability to easily make innumerable perfect copies creates a problem for copyright holders that must be addressed at a systemic level (like at the ISP level). The suits against individuals are too much like whack-a-mole to have practical effect.
  • The question of whether merely making a copy available can be infringement is problematic. So it was probably a good time for the litigation to end so that that question doesn't have many more opportunities to be answered unfavorably for the RIAA.
  • It makes less sense to think of copyright in terms of the right to "copy" as it did in the analog-only world. What's more important now, it seems, is a distribution or access right. Another reason to focus on the ISPs and not the individuals. For more on this, see the work of Ernest Miller and Joan Feigenbaum, Taking the Copy Out of Copyright [Warning - PDF file]
  • Shifting to a model of "punishing" file sharers before claims of infringement can be litigated presents some issues that implicate due process. See Cindy Cohn's comments in this article.
  • Regardless of the legal merits of one's claim (i.e., the RIAA certainly has legitimate rights to enforce), the public relations downside to standing up for those rights

No matter what the shift of strategy really means, the fact that there is a shift at all demonstrates the changing dynamic of the music industry. And it points to a shift, both practical and normative, in the manner copyright law applies to the digital content.

By Evan D. Brown, Attorney Evan focuses on technology and intellectual property law. He maintains a law & technology focused blog called Internet Cases and is a Domain Name Panelist with the World Intellectual Property Organization deciding cases under the UDRP. Visit Page
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One thing I’ve always found funny and Dan Campbell  –  Dec 21, 2008 8:25 PM PST

One thing I’ve always found funny and confusing about this issue is the inconsistency of how copyright law is applied.  I’ll read through the PDF and maybe it will answer my questions, but perhaps you or any other lawyer out there can shed some light on the following points.

1. For a long time, people would record LPs and 45s to analog tape.  A bit later, when dual cassette decks came out, we would copy tape-to-tape.  From what I understand this was legal so long as it was done for private use and not for resale.  The court decision that allowed it, which I believe played out in the 70’s, said that the analog-to-analog transfer to tape degraded the quality enough such that the finished product was not good enough to be considered an exact duplicate.  But there were two realities that emerged that kind of contradicted this thinking:

a.) By the time Dolby B/C/S and eventually HX-Pro came out, taped copies of LPs, pre-recorded tapes and especially CDs were virtually indistinguishable from the original source, maybe not to a committed audiophile listening intently on high end gear in a sound-proof room, but certainly to the average listener listening through average gear.  This was particularly true when the original source was old and originally recorded in full analog format.

b.) Many people obtained tapes of music without having to purchase the original (LP, 45, pre-recorded tape).  This was very common, and I don’t recall the music industry police out with their lawyers knocking on people’s doors.

So, what is the difference now?  Or maybe the question is, why was it ok then to record to tape and avoid purchasing the original source when it isn’t ok now to record digital media?  Why are the laws different?

2. There are really two piracy-related factors that have been hurting CD sales.  The first was CD-to-CD duplication, which started before file sharing in the mid-90s and continues to this day.  The second is file sharing using Napster, KaZaa, BitTorrent, which started around 1999-2000 timeframe and also continues.

My question is this…

CD-to-CD copies are indeed exact duplications of the original material, but the majority of file sharing is MP3s, not the original CD version (or WAV file).  And MP3s are heavily compressed versions of the originals.  MP3 compression is lossy, literally throwing out some of the original sound and relying on principles of human hearing to do it in a way that is (or is supposed to be) imperceptible.  The music file is reduced to about 10% of its original size.  But because of the dramatic data reduction and because it is done in a lossy manner, if you know the source music well and you are listening through something better than computer speakers or cheap ear bud headphones, you can hear the degradation in sound quality.  Some MP3s actually sound bad.  So, why is there not a similar argument presented to the courts stating that, like an analog tape of an LP, an MP3 is a degraded version of the original source and by no means an exact copy?

Thinking through this a bit, it seems like the real issue is that in today’s digital / Internet world, the issue is really the ease of file copying, the speed with which it can be done, and the ability to do it on a mass level.  File sharing applications let you get copies of anything you want regardless of where it is, and you can download it all in a hurry and in large volumes.  Back in the day, you had to actually get a copy of the source in your hand (or have a friend record if for you), and the copying was in real-time, about 45 minutes per album, instead of a few seconds or a minute to download it, so it wasn’t practical to do it in mass quantities.

So, is the issue just the volume, speed and ease?

The funny thing is, if that is indeed the case, it is really the same thing that governs the mentality of most file sharers who seem to think it’s ok to illegally download copyright protected music when the very same people would likely not walk into a store and shoplift it, certainly not in such a large volume that would go beyond simple shoplifting of a few CDs into grand larceny.  The ability to “acquire” large volumes of a product that otherwise must be purchased, to be able to do it very quickly, and to be able to do it with near impunity and very low risk, makes it an attractive crime...er… proposition.

The Wall Street Journal article referenced in Alex Tajirian  –  Dec 26, 2008 9:53 AM PST

The Wall Street Journal article referenced in the post above states that the solution relies on the “cooperation” of ISPs. So, where is the carrot for the ISPs or are they threatening them with a legal stick? Will ISPs charge their clients for the cost of implementing the agreements?

The Wired article draws similarities between RIAA agreements with universities and with ISPs. However such agreements cannot have the same impact. Without compensation to ISPs and with low user switching costs, an ISP that rejects the agreement will be able to capture a large share of the market and defeat the usefulness of the solution. On the other hand, for a student downloader, the cost of switching to a university that rejects the agreement is high and thus, the agreements are more effective. Moreover, without ISP incentives, it would be expensive for RIAA to implement and monitor ISP agreements.

The solution does not take into account two fundamental realities, namely that (a) a large number of the free downloaders and their parents are not convinced that it should be illegal to do it for personal use and (b) a large number of the same people are willing to make a fair compensation to the artists. Lawrence Lessig, professor of law at Stanford University, has argued that copyright law did not envision current issues and thus, needs to be changed to, at least, distinguish between types of use. Meanwhile, one viable alternative solution is that of the Electronic Frontier Foundation, which is based on voluntary collective licensing.

RIAA explains how it catches pirates.

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