Marking a shift in its efforts to clamp down on illegal file sharing, the group representing the U.S. music industry says it will only bring lawsuits against college students who are the most egregious violators of music copyrights–but higher-education officials still will be expected to block students’ internet access if they use campus networks illegally.
The Recording Industry Association of America (RIAA) on Dec. 19 said it has abandoned its policy of suing people for sharing songs protected by copyrights and instead will work with schools and other internet service providers to cut abusers’ access if they ignore repeated warnings against file sharing.
The move ends a controversial program that saw the RIAA sue about 35,000 people since 2003 for swapping songs online. Because of high legal costs for defenders, virtually all of those hit with lawsuits have settled, on average for around $3,500. The RIAA’s legal costs, in the meantime, reportedly have exceeded the settlement money it brought in.
As a result, the association said it stopped sending out new lawsuits in August and has agreed with several leading U.S. internet service providers, without naming which ones, to notify alleged file-sharers and cut off service if they fail to stop.
In a trend that seems consistent with the RIAA’s claims, some campus IT officials said they have noticed the number of "pre-litigation" settlement letters issued to students tapered off this fall after climbing to unprecedented numbers in the past year.
At the University of Kansas, where decision makers announced last summer that they would no longer serve as a go-between for the RIAA in its pursuit of students who illegally downloaded music and movies using the school’s network, pre-litigation notices have slowed to a trickle.
Denise Stephens, the university’s vice provost for information services and chief information officer, said the campus was not alerted to the RIAA’s policy change.
An RIAA spokeswoman said written warnings would continue, but legal action wouldn’t be taken unless the student refused to stop sharing files.
"We will continue to monitor illegal peer-to-peer sites for file-sharing activity, and upon detection of illegal activity we will send a DMCA [Digital Millennium Copyright Act] notice to the school, as we have always done," RIAA spokeswoman Cara Duckworth said. "In their capacity as an internet service provider, schools forward the DMCA notice to the appropriate user and ask him or her to remove the infringing content. No lawsuit is involved unless the user continues his or her illegal activity and ignores repeated notices."
The RIAA credited its lawsuit campaign with raising awareness of online piracy and keeping the number of illegal file-sharers in check while the legal market for digital music took off. With two weeks left in the year, legitimate sales of digital music tracks soared for the first time past the 1 billion mark, up 28 percent over all of last year, according to Nielsen Soundscan.
"We’re at a point where there’s a sense of comfort that we can replace one form of deterrent with another form of deterrent," said RIAA Chairman and Chief Executive Mitch Bainwol. "Filing lawsuits as a strategy to deal with a big problem was not our first choice five years ago."
The new notification program also is more efficient, he said, adding that the RIAA has sent out more notices in the few months since its policy shift took effect than in the five years of the lawsuit campaign.
"It’s much easier to send notices than it is to file lawsuits," Bainwol said.
The decision to scrap the legal attack was first reported in the Wall Street Journal.
The group says it will still continue to litigate outstanding cases, most of which are in the pre-lawsuit warning stage, but some of which are before the courts.
The decision to press on with existing cases drew the ire of Harvard Law professor Charles Nesson, who is defending a Boston University graduate student targeted in one of the music industry’s lawsuits.
"If it’s a bad idea, it’s a bad idea," said Nesson. He is challenging the constitutionality of the lawsuits, which, based on the Digital Theft Deterrence and Copyright Damages Improvement Act of 1999, can impose damages of $150,000 per infringement—far in excess of the actual damage caused.
Nesson’s client, Joel Tenenbaum, faces the possibility of more than $1 million in damages for allegedly downloading seven songs illegally, which Nesson called "cruel and unusual punishment." The case is set to go to trial in district court in Massachusetts on Jan. 22.
Brian Toder, a lawyer with Chestnut & Cambronne in Minneapolis, who defended single mother Jammie Thomas in a copyright suit filed by the RIAA, said he is also set to retry the case March 9 after a judge threw out a $222,000 decision against her.
"I think it’s a good thing that they’ve ended this campaign of going after people," Toder said. "But they need to change how people spend money on records. "People like to share music. The internet makes it so easy. They have to do something to change this business model of theirs."