Monday, April 28, 2008


One likes to believe
In the freedom of music
But glittering prizes
And endless compromises
Shatter the illusion
Of integrity
-Rush, The Spirit of Radio

The Recording Industry Association of America has gone after 40,000 people in the United States for "piracy," that is, downloading or copying music that they did not own or pay for. Of those cases, about 100 have gone to court to fight the charges. It's not that they are so cut and dry that there's no hope of winning in court, or that somehow the RIAA is unbelievably good at building cases. It's that Joe average can't afford to go to court to fight high powered lawyers that the RIAA can afford. So they settle out of court.

One person that did go to court was Tanya Andersen from Portland, Oregon. She went to court to fight, won, and is now taking the RIAA to court.
Her case is aimed at exposing investigative practices that are controversial and may be illegal, according to the lawsuit. One company hired by the record industry, she claims, snoops through people's computers, uncovering private files and photos, even though it has no legal right to do so. A different industry-backed company uses tactics similar to those of debt collectors, pressuring people to pay thousands of dollars in settlements even before any wrongdoing is proven. In Andersen's case, the industry's Settlement Support Center said that unless she paid $4,000 to $5,000 immediately, it would "ruin her financially," the suit alleges.

Andersen is going after the recording industry under conspiracy laws. She argues the Recording Industry Association of America, the industry's trade group, and its affiliates worked together on a broad campaign to intimidate people into making financial payoffs.
Again, I'm divided here as I have been in the past on copyright and music download issues. It's illegal to steal music even if you're just downloading one song. You are in effect taking money away from the businesses that produce the songs. Yes, they make billions and your one song won't hurt them noticeably. Yes, the actual artists get such a small portion of the profits that there barely is a human number to express how much you've taken from them. That doesn't stop it from being illegal and immoral.

The problem is, the RIAA is a nuisance, at best. They are strong arming everyone in sight, hacking into computers to find files that they then use to pressure people into paying settlements, they are using the legal system to pound on people for questionable reasons (you put those songs in your share folder, therefore you're a pirate!), they are in essence a big business thug, the worst of grinding soulless corporations.

It's true that the music industry has lost a lot of their profits in recent years, about the same time music sharing became possible and popular online. It's true that the recording industry is suffering from people enjoying their product without paying. Yet they have to share part of the blame as well for producing lousy products and raising prices. They should have jumped on the online opportunities immediately and began selling the songs individually for a reasonable price (99 cents isn't bad). They should have worked on copyright law to face the new realities. They didn't: they want to cling to late 90s profits in a noughties reality. They shouldn't have started using payola to force their packaged stars on the public rather than letting the music sell its self.

So like I said: I'm ambivalent about this, I can see merits on both sides. I want copyright laws to be updated so that they reflect modern realities. I want music to be better and inventive, not the same lame crap that we've had for over ten years now. Creativity in music is almost dead in the recording industry, of course people aren't willing to pay for it.

Mrs Anderson's case is having effects in the legal community:
Already, the Oregon Attorney General cited the arguments in Andersen's case when he asked a court to quash a request by the music industry for the names of 17 students at the University of Oregon who allegedly shared music online. "The RIAA is fighting very hard to make sure that [Andersen's case] never reaches a jury," says Heidi Li Feldman, a professor at Georgetown University's law school. "The minute this reaches a jury, they will have to think about settling."
The key to Mrs Anderson's case was the settlement process. Record companies claim that every downloaded song is a cost of thousands of dollars for them, but they have a special company created specifically to pressure people to settle. Their demand? $750 per song. If it costs so much, how does this addresss their losses? It doesn't, but what it does is put the number at a point that people might be ready to settle; and based on the numbers above, it is.

In the end, Mrs Anderson was proved innocent, someone had used her IP address to download songs and she was fingered for it. How many times has this happened? For someone with an unsecured wireless connection, it's easy to steal internet time. How many times has someone innocent simply paid rather than gone to court and faced the time and expense? The RIAA's computer experts took her computer (as she offered) and did a study, then resisted releasing the report until forced to by her lawyer. The report noted that she'd never downloaded any song as far as they could tell.

Her lawyer got the judge to force the RIAA to pay the court fees, to discourage them from doing this kind of thing again. The RIAA's lawyers tried to get her to sign an agreement that she would not countersue before they'd drop the case, Mrs Anderson refused. They eventually dropped the case anyway.

Mrs Anderson's lawyer believes that the IP sniffing techniques used to find pirates can be wrong as much as 20% of the time, and people settle to avoid the court time and costs. RIAA responded by closing down their old collections agency and starting a new one, the Settlement Information Line Call Center.

The RIAA's primary lawyer claims the MediaSentry system is not flawed. "The proof is in the pudding. We have obtained judgments against hundreds and hundreds of people," he says. After more than 40,000 cases? That's not very good odds.

This is one case that bears watching. If she succeeds, the floodgates will open for class action lawsuits against the RIAA. I sympathize to some degree with the recording industry's concerns and desires to stop theft, but I do not sympathize with their tactics. Sooner or later, if not this case then another down the road, this is going to bite them back.

Previously on WATN:
No Fair Use
Price vs Cute Kids
Royalties and Radio
RIAA and Extortion
Musicians Guild Dismayed
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