Digital Media Piracy

A number of events in the past months indicate that the issue of digital piracy is far from solved. Back in October the Recording Industry Association of America (RIAA) won its first case against an individual accused of illegally downloading and sharing music. Then, in November, the Associated Press reported that the ISP Comcast was throttling traffic originating from peer-to-peer networks such as BitTorrent. Finally, this month, the French government announced it would cut off the broadband connections to those found guilty of downloading copyrighted material via the Internet. With the acceleration of activity in this arena change seems both necessary and inevitable.


That change is occurring already is evident in the judicial responses to the RIAA’s activities. While the industry may have won its first courtroom victory, the appeal may take another turn. In the original case a fine of $220,000 was levied against a woman accused of downloading and sharing 24 songs. Those thinking $9,250 in damages for each of the 24 songs involved in the trial seems steep are not alone. In the appeal lawyers are arguing that the amount is so far off base as to be unconstitutionally excessive. This is similar to the tack in a similar case awaiting trial in which the defense has requested the RIAA to present the rationale for its figure. That might not be easy, as according to the testimony of Sony BMG head of litigation Jennifer Pariser, “We haven’t stopped to calculate the amount of damages we’ve suffered due to downloading.” In both cases the defendants seem to have the support of the judge.

In another example of the industry being forced to defend its tactics, the Oregon state attorney general is defending the privacy of 17 students at the University of Oregon accused of illegal file-sharing. After the industry sought the identity of the students, the Associated Press reported, “Oregon attorney general’s office calls the request ‘overbroad and burdensome’ in court documents filed Wednesday in U.S. District Court in Eugene to support a motion to quash the subpoenas.” Ray Beckerman, a New York-based lawyer who has been defending individuals in RIAA lawsuits notes the relevance of this case, “It is a really huge step when the head law enforcement officer of a state wants to investigate the RIAA’s evidence-gathering techniques.”

Making matters worse is the lack of consensus in regards to the impact illegal downloading may have on the industry. The Wall Street Journal noted back in March that, “In a dramatic acceleration of the seven-year sales decline that has battered the music industry, compact-disc sales for the first three months of this year plunged 20 percent from a year earlier, the latest sign of the seismic shift in the way consumers acquire music.” No one is questioning those numbers, just their relationship to file-sharing.

There have been numerous reports, including one published this month for the Canadian government, which indicate that music piracy is responsible for the decline in revenue from CDs, that there is absolutely no relation between the two, and that piracy actually improves CD sales. It all depends on interpretation of the numbers. The industry of course sees the relationship; others see the medium as the problem. “The industry has been quick to lay the blame for its tough economic times squarely at the feet of pirates, but there are other factors at work too. The industry’s glacial adaptation to changing consumer expectations around how and where they listen to music has done a lot to hurt the labels, and consumers are less willing to buy CDs now that they can cherry pick their favorite tracks from the iTunes Store,” writes Ars Technica.

At this point, the RIAA and its associates are beginning to look antiquated in their methods and assumptions. Not just in the eyes of pirates, but even to some of its members. Ars Technica reports that, “According to figures seen by Reuters, each of the Big Four contributes approximately $132.3 million to fund the operations of the IFPI, RIAA, and other national recording industry trade groups. That money is used in part to fund the industry’s antipiracy efforts—including the close to 30,000 file-sharing lawsuits filed by the record labels in the U.S. alone.” Apparently EMI, one of the ‘Big Four’, feels it is not getting its money’s worth and is considering cutting its funding to the IFPI and RIAA. Despite its image the industry will likely continue to apply the pressure. If it has its way, it could even take steps, similar to those of France, that some might call more drastic.

As noted, the French government is threatening to cut off the Internet access of those convicted of illegally downloading copyrighted material. The move is meant to recoup tax dollars lost to pirates who no longer attend movies or watch cable television. It may seem extreme to make this a governmental issue, however, according to French president, Nicolas Sarkozy, there is even more at stake than money. “We run the risk of witnessing a genuine destruction of culture,” he said. The move is of course being praised by groups such as the international arm of the RIAA for obvious reasons. Reuters reports that John Kennedy, head of the international recording industry’s trade body stated, “This is the single most important initiative to help win the war on online piracy that we have seen so far.” However, as making this model work requires a direct monitoring of individuals’ Internet activity it is heavily under fire by activist organizations which say civil liberties are at stake. And it could be the civil liberties of U.S. citizens next.

Early last month two senators, a Democrat and a Republican, introduced a bill asking that peer-to-peer copyright infringement be prosecutable by the U.S. Department of Justice as civil wrongs. As CNET reports, “This is not the first time this bill, called the Pirate Act, has surfaced in Washington. Despite criticisms from civil liberties groups and complaints from peer-to-peer companies that it amounted to corporate welfare for copyright holders, the Pirate Act has cleared the Senate three times.”

Until the industry finds another cash cow, scapegoat, or business model the fight will continue.

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