RIAA embarks on new round of piracy suits

By John Borland
Posted on ZDNet News: Jan 21, 2004 11:56:00 PM

The suits are the industry group's first since an appeals court in December blocked its original strategy of identifying alleged file swappers before filing lawsuits by sending subpoenas to their Internet service providers. As a result, Wednesday's legal actions target hundreds of unnamed or "John Doe" computer users, whose identities will be added to the suits only after a court process that's likely to take several weeks.

"The process by which we identify defendants has changed, but the program has not," RIAA President Cary Sherman said in a press conference to announce the lawsuits. "Our message should be as clear as ever: We can and will continue to bring lawsuits against those who distribute music to millions of strangers."

The move comes after a month of mixed news for the RIAA, which had a set of legal setbacks--including the appeals court ruling on the subpoena issue--and some indications that the dampening effect of lawsuits on file swapping may be wearing off.

A survey the Pew Internet & American Life Project conducted in December found that just 14 percent of Americans said they had recently downloaded music from a file-swapping network, compared with 29 percent in a similar survey completed in May 2003.

In contrast, a report Internet monitoring firm The NPD Group released last week found that music file swapping rose 14 percent between September and November, after falling substantially earlier in the year. The research firm attributed its findings in part to the lack of recent high-profile news about legal enforcement as well as a seasonal rise in music releases but said it could not pinpoint specific reasons for the turnaround.

"Do people start to return to their old behaviors when they don't believe you're actively going to take them to task?" asked NPD researcher Russ Crupnick. "We don't have any specific data on that...so it is just a trend that bears watching."

The RIAA declined to comment on the studies, saying different groups used different methodologies and that it is impossible to compare them accurately. Its campaign had been undeniably successful in teaching people about the legal issues surrounding file trading, executives said.

"What we do know for certain is that awareness has shot through the roof," said Mitch Bainwol, the RIAA's new chief executive officer, citing the results of a study the industry group privately commissioned. "Prior to the launch of these legal actions, 35 percent of the population understood that (trading copyrighted music online) was illegal. Now, that percentage is in the mid-60s."

As the group is taking a new legal approach, instituted to comply with the December appeals court order, the new lawsuits are being filed in four batches against large numbers of anonymous individuals. Although suits are bundled around ISPs and are being filed in New York and Washington, D.C., the RIAA declined to name which Net service providers are involved.

Instead of names, the suits contain information on the Internet Protocol addresses of alleged file swappers. An IP address is a technological routing device an ISP assigns to a Net surfer while online. The RIAA plans to ask judges to open a legal discovery process that will enable it to obtain the subscriber information associated with those IP addresses. The subscribers' names will then be added to the lawsuits.

The subscribers will be given a chance to settle before their names are officially added to the suits, Sherman said. However, the settlement amounts offered by the RIAA may be higher than in previous rounds, since the new process has raised legal costs, and the earlier suits have made it far less likely that a file trader could plead genuine ignorance of the law around the issue, the group said.

Critics of the RIAA said the new policy is preferable to the older subpoena model. With the new approach, legal rules require that the anonymous defendants be notified when the request for their personal information is issued. They then have a chance to challenge those requests directly, before they are identified--a difficult process under the RIAA's previous strategy.

An attorney for Verizon Communications, which was the first company to take the RIAA to court over the industry group's previous subpoena policy, said the new process included better protections for computer users' rights.

"Although people may disagree with the RIAA's decision to sue all of those people, Verizon was involved, because we had concerns about the manner in which they were collecting names," said Sarah Deutsch, a Verizon associate general counsel. "The good news for consumers is that the RIAA now has to file a valid complaint with a federal court, and whole thing will play out under the eye of a federal magistrate."

"The John Doe lawsuits are more protective of people's privacy and due process rights," agreed Cindy Cohn, the legal director of the Electronic Frontier Foundation. "It's not perfect, but it's better."

Wednesday's suits bring the total number of people in the United States sued by the RIAA for file swapping to 914. Sherman said 233 suits have been settled so far; another 100 suits reached settlement agreements, at an average of about $3,000.

Other music industry groups in Canada and Europe have indicated in recent months that they are likely to follow the RIAA's lead and begin filing suits against people swapping copyrighted music online in their own regions. None of these legal actions have yet occurred.