Not So Fast

Some time ago, I wrote a blog post about what I perceived to be a turning in the tide of the RIAA’s litigation against file sharers. I was probably a bit naive in my thinking. While the RIAA may have changed its strategy, the cases that it filed originally continue to evolve through the court system. Most recently, in the case of Sony BMG Music Entertainment, et. al. v. Tenenbaum, the U.S. Court of appeals reinstated the jury verdict of $675,000 against graduate student Tenenbaum, who had admitted to downloading 31 songs from Kaaza. The trial judge had reduced the statutory damages awarded against Tenenbaum to $67,500 (that’s still $2,177.41 a song) on constitutional grounds. Apparently the Appeals Court ruled that the issue of constitutionality was premature. Tenenbaum’s lawyer, Charles Nesson had convinced the District Court Judge that the high statutory damages provided by the Copyright Act violate the Due Process Clause of the U.S. Constitution. There may yet be some viability to that argument. However, liability in this case and others like it remains a slam dunk.

The moral to all of this is that despite the fact that suing single mothers and college students is not the way for the music industry to win the hearts and minds of the public and stop illegal downloading and file sharing, it is still illegal, and potentially expensive.

The RIAA filesharing lawsuits: a new chapter

I have been meaning to write something about the creative legal assaults on the RIAA filesharing lawsuits. First, I was impressed by the fact that Jammie Thomas’ attorney Brian Todder had convinced the court to overturn the jury verdict in her trial in Minnesota and I was similarly impressed by a Harvard law professor’s constitutional challenge against the RIAA in his defense of Boston University student Joel Tennenbaum. I am not an advocate of illegal downloading, I just think that the file sharing lawsuits are not the right way to address the problems of the record business.

However, I was not prepared for the article in the December 19, 2008 Wall Street Journal which indicated that the RIAA was poised to abandon its legal assault on file sharing. The article did not specifically say whether the decision would affect all existing suits or simply apply to new suits. There is also some potentially troubling news about an alliance between the RIAA and various ISPs that sounds a little like the Patriot Act ver. 2.I can’t help but think that some of these recent developments made the RIAA less confident of their strategy. On the other hand, perhaps they finally realized the stupidity of suing their own customers. This was a bad idea to begin with. As far as I can tell, the lawsuits had no discernible effect on the worst offenders. The music industry needs to find a way to embrace the new generation of music fans and bring them into the fold. I don’t know if anybody has the idea but lots of people have good ideas. I am old enough to remember some of the great marketing Warner Bros. did in the late ‘60s and early ‘70s which made people life long fans of many of its acts. They basically gave away a lot of free music to anyone who would pay for postage. I can’t help but think that this was more effective than suing a bunch of college students and high school kids.