Friday, December 19, 2008

RIAA Abandons Mass Litigation? - The Good and the Bad News

There’s a story today in the Wall Street Journal that the RIAA is about to “abandon” its mass litigation campaign that has so far scored, scared, and/or scarred some 35,000 individual victims (technically described more accurately as “defendants”) to date. According to the article, "The RIAA said it plans to continue with outstanding lawsuits."

The good news is, presumably, that there will no longer be lawsuits against 12 year old children, dead grandmothers, and teenage transplant patients - although the RIAA apparently reserves its right to sue “people who are particularly heavy file sharers, or who ignore repeated warnings.”

Who knows what “particularly heavy” means - perhaps more than 10 songs? And isn’t “three strikes” all about repeated warnings? But let’s not be too negative at holiday time.

The bad news is that the RIAA is reportedly working on cutting deals with ISPs to invoke a “three strikes” regime against what the record industry considers to be “piracy.”

As the WSJ notes:
The RIAA said it has agreements in principle with some ISPs, but declined to say which ones. But ISPs, which are increasingly cutting content deals of their own with entertainment companies, may have more incentive to work with the music labels now than in previous years.
Some ISPs seem to have been burning the candle at many ends for a long time, and the current throttling initiatives may well be part of such an agenda.

So - if the music industry and the ISPs get into bed with each other to invoke such a regime, what would happen?

• Would there be countless wrongful "terminations" based upon the usual litany of mistakes that have surfaced in identifying alleged unloaders over the years - i.e. use of insecure routers and wi-fi, simple incompetence, etc.?
• Would essential VOIP phone service get cut off for people whose lives depend on it?
• Would there be class actions against ISPs in the USA for wrongful termination of service?
• What will the US FCC, FTC and/or DOJ have to say about all this?

One is almost tempted to prefer the known devil, largely because it may be about to go down in flames anyway as a result of several pending American court cases and possibly bring down the excessive aspects of the American statutory damages regime and “making available” doctrine along with it. Maybe this explains the reported change in strategy...

And what could this all mean for Canada, where some ISPs are perhaps getting rather too cozy with the big four CRIA members and no longer seem to care very much about their customers' wishes, since being half of a duopoly means rarely having to say you're sorry?


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