5.5.11 COMIN' TO GITCHOO

This photo was so stolen from Nicholas Lue without permission. This article originally appeared in the 5.5.11 issue of Metroland.

Seven years ago, the record companies decided the best way to combat online “piracy” was to sue people. People like you and me. Mostly, the industry focused on college kids using peer-to-peer networks like Kazaa and Limewire, virtual networks that were for a time, immune to effective legal challenges. So they sued kids. It was bone-headed and destructive, it did nothing to slow down the movement of music across the internet, and it reportedly cost the labels many millions more than was collected from their victims.

A couple years ago, the labels announced they’d stop the nonsense. There are a few court cases still lingering, dealing with issues like why damage awards in the tens of thousands of dollars are appropriate for the filching of digital files that cost ninety nine cents at the iTunes store. But for the most part, things are quiet on the music downloading front.

Not so in other media. A few media players have decided that suing people for downloading stuff is still a good idea, despite the catastrophic failure of the tactic in the music world. And it’s not clear they’re faring any better than the record labels.

A handful of movie producers (most notably the producers of The Hurt Locker and The Expendables) hired a private law firm (that deceptively calls itself “The U.S. Copyright Group”) that has investigators collecting internet addresses (a string of numbers that identifies an internet subscriber’s location) where movie downloads are detected, and then the law firm demands that internet service providers reveal the names of the subscribers with those addresses. Nasty letters are sent out demanding thousands of dollars, and all the folks who don’t respond are sued in big mass lawsuits. There’s a former divorce lawyer in Chicago doing the same thing for some porn companies.

Here we go again. You get a letter, or worse, a summons and complaint, telling you in stilted legalese with a lot of unnecessarily capitalized and italicized words that you’ve broken the law and are liable for up to $150,000 in damages. You’re given a phone number to call and the rude person on the other end of the line tells you this can all go away if you pay $4000 right now. And yes, they take credit cards.

Finally, a few judges out there are recognizing the incredibly unfair nature of all of this. It’s a shakedown. First, a number of judges have thrown out the mass-lawsuits, where thousands of individuals from all over the country are sued in a single action. Essentially, the judges have been ruling that people need to be sued in the jurisdiction where they live, that it offends due process to force people to defend themselves in a far-away court in a lawsuit involving the downloading of one movie. This, of course, makes the prosecution of these suits much more expensive and administratively difficult. Maybe prohibitively so.

Another interesting twist happened last week when a judge tossed one these mass cases and wrote about the inherent unreliability of matching up an internet address with the individual who may have downloaded a movie. One major problem is the explosion in the number of wireless internet networks in the last few years, and the tendency of folks to leave their wifi networks open without passwords. An internet address can pinpoint where downloading took place, but the who can be a different issue altogether. The judge referenced a recent FBI raid in Buffalo, where a young family were assaulted, had their house ransacked and all their computer gear seized by a bunch of G-men looking for child porn. Turns out there was no child porn anywhere in the house, but there was a wifi network, and a perverted neighbor.

Equally chilling is a bunch of out-of-control lawyers who call themselves Righthaven, who have been trying to police copyrights for a couple of newspapers, the Las Vegas Review-Journal and the Denver Post. What these guys are doing is trolling the internet, and when they find an article or photo from one of these newspapers on a website or blog they haul off and sue. No take-down notice, no cease and desist letter. Bang!

Righthaven has gotten slammed in the courts for bringing suits where the reuse of an article or photo was obviously fair use and perfectly legal; in one case they sued someone who published a report on a Righthaven lawsuit who included the photo that was being sued over! Matt Drudge has been sued. The New York Times reported this week of a 20-year old blogger getting sued after posting a picture of an airport patdown, a picture that had already gone seriously viral all over the internet.

All of this is the sad flailing of industries in decline, of resistance to evolutionary change, and of lawyers taking advantage of outdated legal paradigms. And it’s the little people that are getting hurt.