After coming under widespread criticism over its legal tactics, the Recording Industry Association of America (RIAA) announced in December that it will no longer sue individuals accused of sharing music illegally. Since then, it has focused its efforts on working directly with Internet service providers (ISPs) to stop downloading, but is continuing to pursue a legal case against a local graduate student.
Since it began its legal campaign five years ago, the RIAA, which represents a number of major recording companies, has accused more than 35,000 individuals of copyright infringement. Only a handful of these lawsuits ever went to trial, with the majority of defendants settling outside of court to avoid costlier outcomes. In working through ISPs, it appears that the RIAA hopes to steer clear of the courts all together.
"Now was the time to take our practice of last resort lawsuits and replace that form of deterrence with productive engagement by the Internet service providers community in the form of graduated response programs," RIAA Chairman and CEO Mitch Bainwol wrote in a letter to the staff of the House and Senate Judiciary and Commerce committees.
This logistics of the strategy would depend on the agreements made with individual ISPs, although these agreements have not yet been disclosed.
The Electronic Frontier Foundation (EFF), a digital rights advocacy group, hailed the RIAA's policy change as a victory for all music downloaders.
"We think it's fantastic news," EFF spokesperson Rebecca Jeschke said. "It wasn't working, it wasn't getting artists paid, and it ended up singling out more than 35,000 Americans to pay settlements. … It was a failure for fans."
Still, Jeschke was skeptical as to how well the new approach would work.
"Pressuring ISPs ... is not a good idea for a number of reasons, [including] that there isn't any due process for people that are accused," Jeschke said. That "an Internet blacklist or whatever will develop out of this is a pretty big punishment for those who are claimed to be file sharers," she added.
But in his letter, Bainwol pointed out that this would be a more effective strategy for the RIAA.
"Already, in just the last couple of months, we have seen more notices forwarded from ISPs to subscribers than we filed lawsuits over the previous five years," he said.
These notices often come in the form of cease-and-desist letters. When Tufts University Information Technology (UIT) receives these notices, it investigates the Internet protocol (IP) addresses from which illegal music sharing is allegedly occurring.
Dean of Student Affairs Bruce Reitman does not expect that the university will stop receiving these letters. File sharing is still an ethical issue, Reitman said, and its disciplinary status on campus will not change.
In the past, the RIAA placed heavy emphasis on college students in sending pre-litigation settlement letters, many of which reached Tufts students and others in the Boston area.
Tufts sophomore Adrian Madaro received a pre-litigation letter last semester. "It definitely stopped me from downloading at school," he said.
While Madaro opted to settle after receiving the notice, Boston University graduate student Joel Tenenbaum has been in an ongoing legal battle with the RIAA since 2003.
The RIAA is suing Tenenbaum for illegally downloading and sharing music, and the damages could amount to over $1 million.
Harvard Professor Charles Nesson, who is defending Tenenbaum, told the Daily that he was optimistic about the trial. Nesson and a team of Harvard students are challenging the constitutionality of a federal law that has permitted the RIAA to pursue its aggressive campaign against those engaging in illegal file sharing.
"It's a very strong case for it," said Nesson, who is the founder of Harvard's Berkman Center for Internet and Society. "I don't think the Congress ever intended to authorize this kind of extortion campaign."
In an effort to publicize the trial, the defense filed a motion to broadcast the trial's proceedings online, which is a rare occurrence. The trial is temporarily on hold while the First Circuit Court of Appeals evaluates the RIAA's objections to the scheduled broadcast.
"We appreciate the court's decision to postpone the hearing so that the circuit court could conduct a full review of the matter," RIAA spokesperson Cara Duckworth, told the Daily.
Even in light of the RIAA's change in overall policy, the outcome of Tenenbaum's case could have a major impact on how the recording industry's tactics are perceived.
"It raises questions," Tenenbaum told the Daily. "They are stopping their campaign of suing individual users on the basis that the deterrent effect isn't working. The fact that they continue to bring a case against me is contradictory."
Those who had hoped President Barack Obama's incoming administration would change top-level enforcement of RIAA policies were disappointed in early January by the appointment of Thomas Perrelli as U.S. associate attorney general. Perrelli successfully represented the RIAA in several cases against alleged downloaders.
