The RIAA's curious relationship with its customers

In February of 2005, the Recording Industry Association of America sued Gertrude Walton for putting 700 copyrighted songs onto the internet. She is hardly unusual, they've sued more then 20,000 people over the last four years. This time, the punchline is that Gertrude Walton died in 2004.

Of course, one might think she'd shared the songs before she died. Her daughter, Robin Chianumba, said otherwise. Apparently she didn't want a computer in her house, and never had any experience with them. That's not unusual for someone of her generation; she was 83-years-old.

The case against Gertrude Walton was eventually dropped. However, the death of the defendant doesn't always end the lawsuit.

In Warner v. Scantlebury the RIAA was informed that the defendant had died, so they asked the court for a 60-day stay to allow the family to grieve, after which they intended to take the depositions of the decedent's children.

As compassionate as it may have been to give the family time to grieve, the fact that they sued someone already deceased suggests either that the undead like to steal music, or perhaps that the RIAA isn't being very selective about its targets.

A man named Lee Thao managed to get his case dropped based on the fact that he was not a subscriber to an ISP at the time of the file sharing, and did not have possession of the cable modem connected with the theft, so maybe it's not that they are worried about zombies.

Lee Thao's case makes obtaining legal representation seem like a good idea, until you consider that getting a lawyer will almost certainly be more expensive then settling on the spot, whether your actually guilty of anything or not.

So if it's cheaper to settle then fight, how many people innocent of any crime have already settled?

"When you fish with a net, you sometimes are going to catch a few dolphin."

That statement was made by senior vice president of communications for the RIAA Amy Weiss, who doesn't seem overly troubled by the presence of a few innocents. It's still unknown just how many "dolphins" they've caught so far.

Unfortunately, until February of 2003, the RIAA didn't bother to contact the people they accused of theft. They simply obtained records of IP numbers from different Internet Service Providers and then sued people based on the information given to them.

Questions you should be asking yourself now

Do you have any children? And do your children have any friends who ever use your computer?

No children? Has a friend of yours ever asked to borrow your computer so he could use your internet connection? Is it possible a friend used your computer without asking? After all, file sharing is a pretty common activity. If you think that your child's activities shouldn't be held against you, be aware that the RIAA does not agree.

In May 2005, Candy Chan moved to dismiss the RIAA lawsuit against her on the grounds that the RIAA had sued the wrong person. The RIAA was eventually forced to withdraw the case, though it later filed a new lawsuit against Ms. Chan's 14-year-old daughter. Later the RIAA requested that a legal guardian be appointed for Ms. Chan's daughter to further the suit. The judge ordered them to pay for the legal guardian.¹

When they refused to do so, that lawsuit was dismissed. I tried to find out how much the legal fees for that case were, but was unable to get that information.

So do check your hard drive for strange music files. Don't bother erasing any files you may find. The potential lawsuit would be about downloading the music, not actually currently having possession of it.

Despite the RIAA's legal assault, file sharing continues. Big Champagne reported 3,847,565 global users of peer-to-peer networks in August of 2003. In June of 2005, they reported 8,888,436 global peer to peer users. And in May 2006, they reported more then 10 million. As the lawsuits continue, usage of peer-to-peer filesharing schemes increases at an amazing pace. The question that RIAA executives should be asking themselves now, is whether their unprecedented legal attacks on their customers are actually feeding this dramatic increase.

Of course, the RIAA's position is that the file sharing which goes on is usually theft, and that position is accurate. When people share music over the internet, it's almost always something ripped from a music collection that someone is trying to sell. But even when they are suing the correct party, the punishment seems harsher then the crime deserves.

The RIAA finally runs into some opposition

Yesterday, single mother Tanya Anderson won a double victory in court. Accused by the RIAA of downloading misogynistic gangster rap in Februrary 2005, the charges against her were dismissed with prejudice and the record companies were told they would have to pay her court costs. But more importantly, the way was cleared for Tanya Anderson to turn her lawsuit against the RIAA for malicious prosecution into a class-action lawsuit, allowing others sued by the RIAA to join with her.

Among the troubling accusations made by Tanya Anderson are that the RIAA attempted to contact her 8-year-old daughter at her elementary school without her permission. The RIAA later insisted on deposing her daughter in court, face-to-face. Here is a quote from Tanya Anderson.

"They have made my life a mess, put my life on hold, and created a lot of damage. I've been treated like a criminal for something I never did. My life will never be the same. I feel these companies should be ashamed and held responsible for what they have done. I don't care who someone is, they shouldn't be allowed to attack an innocent person and make their life a living nightmare."

A great many people, some totally innocent, others guilty only of ignorance, have been made to pay out large sums of money. They've also been forced to spend years of their life defending themselves. Despite that, it's unlikely that the RIAA will even be able to cover it's own expenses incurred in bringing these lawsuits. The point is not to make money, so much as to threaten and intimidate.

I know exactly what's going to happen to the recording industry in the next few decades. It's not because of a crystal ball I keep on my desk, it's because unlike the RIAA, I understand the history of the recording industry.

As far back as in the 1930's, record companies voiced concerns that the new technology of that era, Radio, would put them out of business because nobody would pay for music they could hear on the radio for free. However, by the 1950's the payola scandal revealed that the various record companies had gotten over the fears of radio enough to bribe radio disc jockeys to play their music in preference to that of other artists.

History repeated itself again, when the VCR was created. Let's listen to what Jack Valenti, President of the Motion Picture Association of America for 38 years, had to say about the VCR and how it would effect the movie industry.

We are facing a very new and a very troubling assault ... and we are facing it from a thing called the video cassette recorder and its necessary companion called the blank tape.
We are going to bleed and bleed and hemorrhage, unless this Congress at least protects one industry ... whose total future depends on its protection from the savagery and the ravages of this machine [the VCR]."
"[Some say] that the VCR is the greatest friend that the American film producer ever had. I say to you that the VCR is to the American film producer and the American public as the Boston strangler is to the woman home alone."

Like the MPAA before them, the RIAA fears that new technologies will drive them into extinction.

Unfortunately, they are wrong.

In time they will embrace the technology they fear. But before they do that, they are going to sue some people.

An Independent Internet, a new column sponsored by Listen In continues next Friday. In the future I'd like to talk about internet radio and whether that new market will continue to exist, the future of Tanya Anderson's class action lawsuit, and some other aspects of how the RIAA is lashing out at new technologies and markets.

If you'd like to see some more content from Listen In, click here.

Sources not linked in the Article

¹RIAA v. The People: Four Years Later, a PDF file. Caution, PDF's may take substantial loading time on older systems. The reference to Candy Chan is on page 8.

² How the RIAA Litigation Process Works, by Ray Beckerman An excellent article describing in detail how the process as a whole works, and how it's changed over the years.

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