more on who is to blame -- riaa

[David Farber <dave () farber net>]

Begin forwarded message:

From: Brad Templeton <btm () templetons com>
Date: August 19, 2006 1:59:57 PM EDT
To: David Farber <dave () farber net>
Cc: ealmasy () axisdata com, spl () ncmir ucsd edu
Subject: Re: [IP] more on who is to blame -- riaa

On Sat, Aug 19, 2006 at 11:40:43AM -0400, David Farber wrote:
> From: Edward Almasy <ealmasy () axisdata com>
> Date: August 19, 2006 11:38:34 AM EDT
> To: Steve Lamont <spl () ncmir ucsd edu>
> Cc: David Farber <dave () farber net>
> Subject: Re: [IP] more on who is to blame -- riaa
>    The reprehensible conduct isn't the RIAA and
>    company going through legal channels to defend
>    their property rights;  it's the RIAA using their
>    size and bankroll to intimidate people into
>    capitulating to their demands without a legal fight.


The RIAA strategy is an example of a new legal phenomenon that
I have dubbed "spamigation" -- bulk litigation that's only
become practical due to the economies of scale of the computer
era.   We see spamigation when a firm uses automation to send
out thousands of cease and disist letters threatening legal
action.   We saw it when DirecTV took the customer database
for a vendor of smartcard programmers and bulk-litigated
almost everybody in it.

Economies of scale and automation are not necessarily evil, but
they do change the balance.  The balance of the law was set when
legal action didn't scale well.

The RIAA uses systems to gather lists of alleged infringers,
and bulk-sues them.   It has set a price that seems to be
profitable for it, while being low enough that it is not
profitable for the accused to mount a defence, as they do
not get the economies of scale involved.

If the above sentence doesn't scare you, we also have
the issue that for the big player, a few mistakes are
tolerable noise in the system.   For the target of a mistake,
such as a person whose wireless network was used by
a neighbour, or a completely innocent person caught in an
ordinary error, we see no solution -- pay a settlement
of several thousands, or spend far more to fight in court.

We will need to adjust the legal system to deal with
spamigation.   Mistakes in any bulk use of the law must
be punish, I suspect, with high penalties which eliminate
the economies of scale.    Ie. if you threaten 100, and
1 defends and wins, penalties must exceed the settlements
of the entire 100, perhaps.  And something must exist to
assure the innocent will defend themselves -- the potential
for punative damages may be insufficient.


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