EFF report slams RIAA lawsuit campaign, calls for flat-fee, unlimited P2P

[David Farber <dave () farber net>]

Begin forwarded message:

From: dewayne () warpspeed com (Dewayne Hendricks)
Date: August 30, 2007 6:26:10 PM EDT
To: Dewayne-Net Technology List <xyzzy () warpspeed com>
Subject: [Dewayne-Net] EFF report slams RIAA lawsuit campaign, calls  
for flat-fee, unlimited P2P

EFF report slams RIAA lawsuit campaign, calls for flat-fee, unlimited  
P2P
By Nate Anderson | Published: August 29, 2007 - 01:01PM CT

<http://arstechnica.com/news.ars/post/20070829-eff-report-slams-riaa- 
lawsuit-campaign-calls-for-flat-fee-unlimited-p2p.html>

Four years after the RIAA launched its first lawsuits against  
individual file-swappers, the Electronic Frontier Foundation takes a  
look back at the campaign as it has unfolded so far and concludes  
that "suing music fans is no answer to the P2P dilemma." So what is  
the answer? According to the EFF's 20-page report on the topic, it's  
a voluntary collective licensing regime that would let music lovers  
pay a few bucks a month to legally download (and keep) any songs they  
want.

The new report, RIAA v. The People: Four Years Later, offers an  
excellent overview of the recording industry's legal tactics,  
beginning with several cases in the early years of the decade  
designed to "sue the technology." When it became apparent that trying  
to stop individual file-sharing applications simply wasn't going to  
stem the tide of P2P sharing, the RIAA changed gears in 2003.  
Lawsuits against individuals began soon after.

As anyone with even a remote interest in the topic is no doubt aware,  
the record labels have since filed something on the order of 20,000  
lawsuits against US individuals. At first, the RIAA issued its own  
subpoenas directly to ISPs (in order to connect IP addresses to  
individuals) using a power that it believed had been granted by the  
Digital Millennium Copyright Act.

But the campaign slowed down after some ISPs fought back. RIAA v.  
Verizon eventually went against the recording industry and forced the  
labels to do things the old-fashioned way: file a "John Doe" lawsuit,  
convince a judge of its merits, and get permission to issue a subpoena.

"This procedure was a distinct improvement over the DMCA subpoenas  
because it required the RIAA investigators and lawyers to follow the  
same rules that apply to all civil litigants," says the EFF. It also  
cost the RIAA more money and time. Though the EFF doesn't mention it,  
the RIAA generally makes ex parte discovery requests; that is, it  
seeks a subpoena without offering the accused a chance to respond.  
While this has generally been allowed simply in order to get user  
information from ISPs, some judges are now throwing up roadblocks to  
that strategy.

This year, as you know, the RIAA has focused particularly on college  
students, sending "pre-litigation letters" to colleges across the  
country when it finds evidence of illicit downloading. Some colleges  
have gone along with this, forwarding the letters to students, while  
others have refused to do so. Congress has even threatened to get  
involved if something isn't done soon.

What to do instead
Despite all the lawsuits, P2P sharing does not appear to be down in  
the US. The EFF report cites research firm The NPD Group, which found  
that file-swapping surged 50 percent higher in 2006 than it had been  
in 2005. Music trade group IFPI, however, cites a Jupiter Research  
study showing that regular P2P downloading was decreasing slightly in  
Europe even as broadband penetration surged.

In any case, file-sharing remains strong in both the US and Europe,  
and the EFF argues that continued lawsuits against individuals will  
produce only diminishing returns. "As press attention fades," says  
the report, "the 'bang for the buck' provided by suing randomly- 
chosen file sharers has diminished as well." If true, then using the  
lawsuits as a way to educate consumers about downloading unauthorized  
music could become prohibitively expensive.

[snip]



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