12.31.08 SO SUE ME

This article originally appeared in the 12/31/08 issue of Metroland.

Last week the Recording Industry Association of America announced that it was ending its five-year reign of terror against its own customers. Yes, the RIAA decided that it was going to stop suing people that its “investigators” had “detected” making music files available for others to download over the internet.

Since 2003, the RIAA has jammed up over 35,000 people, college kids, mostly, for using peer-to-peer online services like Limewire and Grokster to acquire music. Letters were sent demanding quick “settlement” payments of three or four thousand dollars or else face a legal hell of scorched-earth litigation from high-priced, far-away law firms, with the downloaders’ potential liability often in the millions. Legally, the RIAA’s claims have always been on shaky grounds, but the combination of an insane imbalance of legal resources, a rational unwillingness of people to be legal guinea pigs, and a few lazy judges has kept the RIAA’s extortionate scheme viable.

So why has the RIAA pulled the plug? Well, maybe it determined that this was a really stupid idea to begin with. Here's an industry with precipitously falling sales, holding on to some romantic notion of relevancy left over from the '60's and 70's, and now finding itself universally reviled for its bullying and arrogant behavior. Plus, the lawsuits were not working anyway, as more song files than ever are being moved around the internet for free, and probably even more are being moved around the so-called “sneakernet.” Like the 40,000 songs on the hard drive a friend just made me borrow a weeks ago. Like the DVD-R with 1500 obscure 60’s tracks another friend mailed me a few months ago. Maybe the RIAA just needs a hug. And a new business plan.

Maybe the RIAA is falling apart. With member companies hemorrhaging money and with stock valuation tanking, perhaps the notion of mass lawsuits against the general citizenry, which reportedly cost a lot more money than they bring in, is seen as an expendable and imprudent business strategy. There have been rumors for months that EMI, the smallest and most vulnerable of the major labels, was angling to leave the RIAA for just this reason.

Maybe the RIAA sees the door closing. After five years of an essentially free legal ride, there are a couple of cases out there where the victims are fighting back, with the help of organizations like Harvard's Berkman Center and the Electronic Frontier Foundation. In these cases, the judges are finally taking hard looks at the legal issues involved, as well as the fundamental fairness of the RIAA’s lawsuits. Interesting, the RIAA has not said that it will seek to discontinue any of it’s ongoing lawsuits, and it should be noted that for any lawsuits in which a defendant has responded with a court filing, the RIAA can’t unilaterally end the case anyway. All it takes it one or two adverse rulings, and the RIAA’s cruel and ridiculous playhouse falls apart. And then the class-action attorneys, representing the 35,000 victims, move in, and suddenly there’s a new sheriff in town.

Of course, we could consider the RIAA’s stated reasons for discontinuing the lawsuits, although this should be the avenue of last resort. This is an organization with an historically tenuous relationship with the truth. In announcing the end of the lawsuits, RIAA spokesman said no new lawsuits had been filed ”in months” when in fact new suits had been filed regularly right up to mid-December. Another RIAA gasbag said the now-abandoned lawsuit strategy were the industry’s “only option,” a typically oblivious observation from a group of companies that failed to develop a digital strategy, engaged in price fixing and payola and copyright abuse and are now staring down a long tunnel of almost-certain and soundly deserved continued decline.

Now, the RIAA claims that it’s “changing direction,” and will somehow work with your internet service companies (ISP’s) who will “help” the RIAA police suspected downloaders. Word is that some kind of deal is being hammered out with the “assistance” of New York AG Andrew Cuomo.

As there’s been no official word from Cuomo or any ISPs on this yet, we can only rely on rumor and speculation, but rumor and speculation come from somewhere, right? The talk is that Cuomo’s leaning on the ISP’s to implement some sort of “3 strikes” policy, where your internet connection will be disconnected if you are “suspected” of downloading too much stuff. Exactly how and who determines this is unknown. Will your activities be monitored? Well, apparently yes, somehow. And then what kind of due process will you have? Who knows? Like Santa Claus, your ISP will know if you’ve been bad or good, so be good for goodness sake or no internet for you!

This is ultimately scarier that 35,000 random lawsuits. This is serious. For all his faults, former AG Eliot Spitzer blew the doors off the major labels’ payola practices, and used the penalty money to create a massive music fund which has significantly enriched our culture ever since with grants, commissions and awards to musicians and music organizations. Why then is Andrew Cuomo coddling the same industry by (allegedly) strong-arming ISP’s to be the music industry’s enforcement cops? Is this what we pay him for? Doesn’t he have better things to do? Like, I dunno, fight crime?