TCS Daily

Wise Move?

By James Plummer - July 1, 2003 12:00 AM

Flush with its victory letting it pry the names of computer users from their internet service providers, the Recording Industry Association of America is on the attack again. With a full-page ad in the New York Times Thursday, RIAA has kicked off a high-profile and risky campaign against those who dare to share digital music files online. The trade group has announced plans to file suit against Internet users -- including "kids" -- who trade a "substantial" number of music files on line.

Using tough talk in their ad, the RIAA was joined in their crackdown announcement by a coalition of other trade associations and unions in the music business. A number of individual artists, including the Dixie Chicks, also expressed support for the RIAA's upcoming legal offensive as well, in remarks posted on the RIAA's website. RIAA president Cary Sherman told the Atlanta Journal-Constitution that they plan "at least several hundred lawsuits to start, but that's only the beginning."

Is this really the wisest move? Probably not.

RIAA is playing coy about what they even mean by the word "substantial." If RIAA plans to focus their action against "supernodes" who offer thousands of music files on university or industrial quality super-broadband connections, consumers will understand the rationale. But RIAA could be stepping in it if they decide to scare the love of copyright into peer-to-peer users at large by including among the planned "hundreds" of defendants some who only share a handful of songs.

Such an overreach would be intruding upon what is considered by many fans to be a fair use of a purchased product -- sharing a song or two from entire albums purchased here or there. A full-court press against such Internet users could result in a customer backlash. Besides the obvious prospect of consumer boycotts, RIAA could also find the dockets turned on them and face lawsuits for malicious prosecution. RIAA should tread very carefully here.

The rationale behind RIAA's offensive is apparently that, by going after users of the P2P networks, consumers might be driven to the new authorized online music services that have been popping up recently. If RIAA can keep control of themselves by targeting and discouraging the small percentage of P2P users that provide the majority of copyrighted files, and use that legal strategy in conjunction with other techniques such as seeding the networks with fake files and clogging the system with slow downloads of real files, they may be somewhat successful. Increasing the time costs of average music consumers who use P2P networks without threatening jail time and ridiculously large fines will encourage music downloaders to look at alternatives with relatively low costs in both time and money, such as the new authorized music downloads, as well as used CDs available online at places like The big labels may also want to consider taking advantage of the publicity by cutting retail prices on new CDs in order to make the P2P option even less attractive.

But a whole-hog offensive would just speed the move to more advanced peer-to-peer systems such as EarthStation5 or NullSoft's Waste which makes use of, respectively, anonymizing techniques and smaller trusted communities of file-sharers. RIAA will have a much harder time penetrating these systems, and if their actions result in Internet users flocking towards them, they will probably regret overplaying their hand rather than trying to find a way to work with peer-to-peer networks to market and sell music.

The victory in the Verizon v. RIAA case gives the music industry broad legal powers to administratively subpoena the identities of computer users without even the approval of a judge. If the belligerent tone adopted in the Times ad and other recent pronouncements translates into overly aggressive action against music consumers who engage in casual file-trading, RIAA can expect their sales to slip that much faster as consumers move file-sharing further underground and perhaps even -- horror of horrors -- take a closer look at independent artists, many of whom have themselves been speaking out against the crackdown on P2P.

James Plummer is a policy analyst for Consumer Alert, a non-profit consumer group based in Washington, DC.

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