Taking on the RIAA

In the wake of an industry turned upside down, everyone is twiddling his or her thumbs, impatiently awaiting music’s next featured product. As Steve Job’s steers and extends the Apple Company over and through the market, industry consultants are pondering over ideas that could potentially rival the current digital music explosion. The digital music market has become more relevant in 2007 than ever before. With a 47% increase this year, digital sales have contributed almost 75% of the market value to Apple’s iTunes store. This increase in digital sales has provided a little more stability to the music industry. However, it is well noted that the industry has a long way to go in order to totally recuperate from the loss of physical retail sales. For in the month of October 2007, physical retail has seen a 27% decline in comparison to its prior year.
As a catalyst to music’s growing digital music market, The Recording Industry Association of America, known as the RIAA, has also had a busy year. Representing the recording industry of the United States, this trade group consists of a large number of private corporate entities such as record labels, and distributors who create and distribute about 90% of the recorded music sold in the U.S. The RIAA is also responsible for the collection, administration and distribution of music licenses and royalties. It is due to the nature of their business that they have waged war on illegal distributors and downloader’s of digital music. Their mission to preserve both the copyrights of the physical recording as well as the publishing rights. They have left nobody unprotected from their wrath. Even iTunes, (the worlds number one online store of recorded music) has come under fire from the RlAA for it’s low nonnegotiable pricing methods, despite its growing contribution to the music industry’s overall economic gross.
It is through the controversial Digital Millennium Copyright Act (DMCA), that the RlAA has been aggressively pressing charges against file sharers. The past three years have clearly reflected the results of these actions. I believe that the increase in digital music sales is partially due to the RlAA’s strong emphasis on legal action in recent years.
If an allegation is made that the DMCA is being violated, the clerk of a court issues a subpoena to the alleged offender; this despite a lack of evidence being submitted or a lawsuit having been filed. Upon issuance of the subpoena, the RIAA claims entitlement to locate the copyright offender through their IP address, also known as their Internet Protocol Address. This unique address is fitted to certain electronic devises currently in use, in order to locate and communicate with one another. Therefore, through these IP addresses the RIAA can get a location on the computer, and therefore obtain enough personal information to identify the offender. These addresses in many ways function as your digital social security card, and at times a mistake in identity can occur.
In 2003, the recording industry mistakenly filed a lawsuit against a 66-year-old woman, claiming that she had illegally shared more than 2,000 songs through Kazaa (a commercial peer-to-peer network) and threatened to hold her liable for up to $150,000 for each song. While, this amount was surely just a threat to create leverage on the RIAA’s behalf, odd pieces of information began to point to her innocence and a mistake in computer identity. Funny enough, this 66-year-old single woman was accused of downloading 2,000 songs, one of them being gangster rap artist Trick Daddy’s “I’m a Thug.” Evidence proved that the mistake was most likely due to the incorrect transposition or display of the actual offenders IP address. Therefore, the innocent women quickly became a victim of a mistake in the wrong Internet protocol address.
While this specific case was clearly a misunderstanding, many of those greeted by the RIAA through a court-issued subpoena feel mistreated by the ease at which the RIAA can obtain their private information simply by an accusation. In 2003, a Boston student challenged the RIAA by attempting to quash a subpoena issued to her college by the music industry body. Joining in her fight, the student won the support of the American Civil Liberties Union who stated “the subpoena should not oblige the college to reveal the student’s identity without first being subject to challenge in court.”
If the First Amendment protects the right to engage in anonymous speech then the defense believed that anonymity should extend to new advances in technology, specifically a controlling idiom such as the Internet. The defense of the Boston University student further stated that a subpoena sought to strip the individual of her fundamental rights to privacy and free speech. The accuser (the RIAA) asserted that it had the right to obtain this subpoena from the court based on probable cause, even if the RIAA was not first required to:
• establish that the request was in support of a case or controversy;
• provide notice to the individual about the request or claims;
• afford the accused the opportunity to be heard; or
• have a judge to review the legal and constitutional issues presented.
The RIAA has received a lot of criticism for it’s aggressive approach to dealing with file-swappers. Their methods have often become more impulsive, often giving off the impression “Hey! Can we hurry this up? We have another couple hundred of cases to get through.” In August 2007, a Boston Judge denied the RIAA’s motion for a summary judgment, which according to them was based on the defendant’s alleged failure to respond to the RIAA’ s Request for Admission. In response, the courts decision held that “the RIAA had served its request for admission prematurely, prior to the conduct of any discovery conference.” In addition, the court also noted “the RIAA had upped the ante quite a bit, trying to get a judgment based on 41 song files, even though it had originally been asking for judgment based on 9 song files. This would have increased the size of the judgment from about $7,000 to about $31,000.”
The RIAA’s legal and financial backing has created a bulldozing machine that seems impenetrable by the average file-swapper. Most individuals receiving subpoenas would rather settle outside of court than square off head to head with one of music’s largest corporate entities. Reports have estimated that most individuals summoned for illegal downloading have paid between $2,000 and $10,000 each. The majority of the accused have been tracked through peer-to-peer server networks such as Kazaa, Acquisition and Napster before them. These commercial programs are a far greater risk to take on in illegal downloading as opposed to a more recent form known as torrent downloads.
In quick summarization, the primary difference between peer-to-peer networks and torrents are based upon the way the files are downloaded. On a peer-to-peer server, a file is generally downloaded via an established connection with a file seeder (another computer/ person that has the file on his computer). The file is then through a peer-to-peer connection uploaded to the new computer. This type of file sharing has been carefully monitored and can be traced back to both the file sharer and the file downloader. The difference with torrents, and what makes it a more obscure illegal activity is the fact that files (usually obtaining an entire album as opposed to a single song) are downloaded in small pieces by hundreds and thousands of seeders. It is because of the large number of people providing the file to the downloader, that pointing the finger at the seeder is harder to target than the single peer-to-peer connection on a program like Kazaa. However, the more complex personality of a torrent does not protect the downloader or anyone else, for that matter. It has generally been acknowledged that every time a new technology is banned or outlawed, a kid in some basement will come up with the next program to counter act it. However, this term also applies in it’s inverse. Every time a new illegal technology arrives, the authorities catch up and the law goes after the perpetrators.
The lawsuits and settlements created through file sharing have been receiving more and more press. Campus colleges have come directly under fire due to their personalized peer-to-peer networking servers. By striking fear into the hearts of computer savvy consumers and online pirates, the RlAA has filed lawsuits against over 20,000 individuals in total. These defendants have either settled with the RIAA outside of court, or thrown their luck and personal “weeping willow” story on the mercy of the court. With an uncreative defense the regulations that foster a copyright infringement conviction are pretty self-explanatory. You either downloaded or shared files of music for free, or you didn’t. However, a new growing number of people have started to defend themselves, going against the odds, and taking their case to court.
I have personally had the privilege of talking to some of those contacted and accused of downloading illegal music files. Through my association with a Boston based law firm I have heard individuals contemplating the idea of taking their case to court, and describing the “unique” circumstances of why they downloaded illegal music in the first place. However, through listening to the words of legal practitioners in this area of law, downloading free music that has not been issued by the copyright holder is a violation of copyright and therefore punishable at law. No matter what the personal story entails, the fact remains that you personally refused to acknowledge the law and ulterior options presented to you through Internet stores such as iTunes when deciding to download illegal music. While, certain lawsuits have been taken to court, they are being tried at the risk of accused. The RIAA has endless legal and financial support when compared to your standard individual. Therefore, these cases have been pursued at the risk of the smaller financial pocket.
With the imminent death of their traditional business models, it now appears that the major recording companies – Columbia Records, Sony BMG and Universal Music Group – are advocating online subscriptions, which charges users a monthly fee for downloading unlimited music, rather than the old model of selling it track by track. For example, there is a device called Sonos, which lets a user stream music on demand from the Rhapsody subscription service’s 4.5 million song catalog. Universal Music Group is spearheading a plan called Total Music, a free music download service, in which MB3-player manufacturers, advertisers and Internet service providers would cover the cost of subscription. The plan, which also includes Sony BMG and possibly Warner Music – is widely seen as a move against Apple’s digital-music dominance.
With these changes in an industry that seems as if it will be forever classified as “under review,” the legal actions of the RIAA may soon be unnecessary. If the industry ultimately provides universal access to music via the Internet and downloads, with advertisers, ISPs and MP3 manufacturers paying the freight, the need to pirate music may be eliminated. However, in the meantime, the actions of the RIAA (although sometimes Draconian and maybe unconstitutional), coupled with the evolution of the business of selling music, may have helped save the industry. However, oddly enough these more rebellious times have also warranted more digital consumer compliance, as seen in the increasing sales of digital music. It seems that while everything is intertwined with one another, everyone’s primary focus is on the protection of both the business and or his or her personal identity. In conclusion, it has been known that sometimes to preserve either of the two, you have to risk something to get a little piece of mind.



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