December 19, 2008 | By Fred von Lohmann

RIAA v. The People Turns from Lawsuits to 3 Strikes

The lawsuits are ending. It's about time.

According to the Wall Street Journal, the recording industry has halted its mass litigation campaign against music fans for Internet file-sharing, a campaign that has targeted more than 35,000 Americans over more than 5 years (for a complete history of the lawsuits, see our RIAA v. The People white paper).

Ending the lawsuit campaign is long overdue. The campaign has been, by any measure, a failure. The lawsuits have not reduced unauthorized file-sharing and have not gotten a single artist paid.

But the news today is not all good. First, the recording industry will continue to press the thousands of pending lawsuits, presumably pushing for the usual four figure settlements. How is it going to feel to be the last college student to settle in a fight that the recording industry has now admitted isn't worth the candle?

More troubling is the news that the RIAA is pressuring U.S. ISPs into adopting some sort of "3 strikes" approach, similar to those it's been seeking in Europe (see, e.g., the French "digital guillotine" proposal). According the the Wall Street Journal article:

[T]he Recording Industry Association of America said it plans to try an approach that relies on the cooperation of Internet-service providers. The trade group said it has hashed out preliminary agreements with major ISPs under which it will send an email to the provider when it finds a provider's customers making music available online for others to take. Depending on the agreement, the ISP will either forward the note to customers, or alert customers that they appear to be uploading music illegally, and ask them to stop. If the customers continue the file-sharing, they will get one or two more emails, perhaps accompanied by slower service from the provider. Finally, the ISP may cut off their access altogether.

This means more music fans are going to be harassed by the music industry. As Wired's Elliot Van Buskirk points out:

Due process has been prohibitively expensive for the RIAA. The organization has long sought a more efficient way to exert pressure on suspected file sharers, and these new agreements will grant it that wish, saving it money and allowing it to pressure far more suspected file sharers, all without filing a single subpoena.

The recording industry's efforts to push "3 strikes" legislation in Europe have been definitively rejected by the European Parliament and by Sweden. While UK ISPs have agreed to send notices for rightsholders, they've stopped short of automatic Internet disconnection. This leaves France as the sole European aberration.

The problem is the lack of due process for those accused. In a world where hundreds of thousands (or millions) of copyright infringement allegations are automatically generated and delivered to ISPs, mistakes are going to be made (just look at the innocents, 1, 2, 3, 4, who were swept into the RIAA litigation machine). Anyone who has ever had to fight to correct an error on their credit reports will be able to imagine the trouble we're in for.

And being added to a nation-wide "Internet blacklist"—like that in the pending French legislation—is a disproportionate punishment, even for those who are "caught" file sharing. By conservative estimates, 1 in 5 American Internet users is an active file-sharer. Does the recording industry really think that banning 20% of Americans from the Internet is the right answer? Do ISPs? Or will the millions of ISP "warnings" just give rise to more encrypted and anonymized file-sharing mechanisms, all the while getting no artists paid?

We still need a better way forward, that legalizes file-sharing and gets artists paid. So, while today's news is long-overdue, the more interesting development is the recording industry's recent willingness to discuss collective licensing with universities.


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