The Empire Strikes Back: The RIAA takes the campus to the courthouse in the ongoing war against file-sharing

On June 8, Denver-based law firm Holme Roberts & Owen LLP sent out letters on behalf of the Recording Industry Association of America (RIAA) to eighteen students at the University of Chicago under the ominous bold headline “Re: Notification of Copyright Infringement Claims.” As can be inferred–and has already been much discussed–the letters were sent out to notify the students that they were, in essence, about to be sued. “We have asked your Internet Service Provider to forward this letter to you in advance of our filing a lawsuit against you in federal court for copyright infringement,” the letter starts out before delving into further detail regarding the student’s offense, including the number of “audio files” found illegally distributed and the peer-to-peer (P2P) network through which the offense was committed. The Internet Service Provider that forwarded the letters on was the University of Chicago, whose network the students had used to download and share said files.

Contrary to popular belief, the RIAA, which primarily represents the “Big Four” record labels (Sony BMG, EMI, Universal, and Warner), is a reasonable organization. Rather than just drag potential offenders to court and nail them with the largest fine possible, ranging anywhere from $750 to thousands and thousands of dollars per song, the organization would much rather settle for a few thousand per perpetrator. $3000 seems to be the magic number for UofC students caught in the June wave of litigation. The letter states: “If you contact us within the next forty (40) calendar days, we will offer to settle the claims for a significantly reduced amount compared to what we will offer to settle them for after we file suit or compared to the judgment amount a court may enter against you.” The settlement option ranges from $3000 to $4000, so it seems that students here may have even gotten the cheap end of the stick. Considering the $9250 that convicted copyright infringer Jammie Thomas of Brainerd, Minnesota was just ordered to pay per shared song on October 4–amounting to an astonishing $222,000 fine for the sharing of just 24 songs–$3000 is practically lunch money.

So why all the continual fuss in the national media and on campus? Why not just pay the fine, acknowledge the wrongdoing, and be thankful there are only three zeroes tacked to the end of that number? As it stands, that seems to be exactly what most of the students at the UofC have done; of the fourteen identifiable offenders, only six have yet to settle with the organization. And while the students and their parents, who most likely foot the bill, are no doubt displeased, it seems they’ve made the best decision–or rather the only decision short of hiring a lawyer and taking their chances on the legal circuit. And with Thomas’s decision (notwithstanding the impending appeal) essentially securing the RIAA’s legal foothold, the controversy should be on the verge of dissolution, and students should either get off of Limewire or prepare to face the potential consequences. Right?

Unfortunately, it’s not all quite as simple as it seems.

As David Byrne once infamously lamented, “facts all come with points of view / facts don’t do what I want them to”–a plight the RIAA is certainly no stranger to, considering the continued prevalence of illegal downloading. Take, for instance, the fact that, according to market research firm NPD, college students downloaded more than 1.3 billion audio files in 2006, or that, according to the same source, college students get more of their libraries from illegal downloading than the rest of the public, at twenty-five percent vs. the general public’s sixteen. NPD also reports that college students, while representing only ten percent of the survey sample, accounted for twenty-six percent of all P2P downloading and twenty-one percent of all P2P users in the same year. And a survey by the Intellectual Property Institute at the University of Richmond’s School of Law has found that more than half of college students illegally download music. As a result, this February saw the RIAA launch a new initiative of lawsuits specifically aimed at universities, offering settlements such as previously mentioned; four hundred letters are sent per month to a variety of colleges nationwide, with over 3000 having been sent thus far. And, as if it wasn’t already obvious, RIAA spokeswoman Cary Duckworth confirms that “Of the 3000-plus letters we have sent, the majority have been settled.”

But the fact remains that, no matter how many lawsuits it may file, the RIAA will never completely eradicate online musical piracy, and its members realize as much. Duckworth claims that the RIAA’s goal is not to completely eliminate illegal downloading, but “to boost the legal services so that they can gain traction and outpace P2P networks.” Upon further discussion, she puts on a somewhat unexpected air of optimism (given the current legal climate), choosing to emphasize the digital marketplace as one of “innovation and experimentation.” For example, at the mention of bands sidestepping record labels altogether–such as Radiohead has done with its latest album, “In Rainbows”–Duckworth acknowledges that “This is the marketplace at work; an experimentation,” claiming that “That’s what you see nowadays: bands taking on the place of the record label…[or] a record label taking a lesser royalty of a CD sale in exchange for a greater cut of marketing and touring.” Granted, she skirted the possibility of leaving record labels out of the loop entirely, such as Madonna is rumored to do in signing a potential recording and concert promotion contract with Live Nation in the near future.

Nevertheless, despite the frequent headlines touting “yet another nail in the music industry’s coffin,” the RIAA does have some reason to be pleased in recent industry developments. For instance, digital album purchases rose one hundred-three percent from 2005 to 2006, and NPD reports that there were nearly 13 million households using a paid digital music download service that year, a threefold increase since 2004. Furthermore, internal RIAA surveys show that seventy-three percent of people now realize that downloading music for free is illegal, compared to just thirty-seven percent in June 2003. Apparently, the “multifaceted approach” that the RIAA has taken to combat piracy, which includes educational programs, advertisements, active licensing to digital retailers and, yes, the lawsuits, has begun to pay off.

Yet, even as the RIAA ratchets up victories on both the legal and commercial fronts, not everyone is quite ready to let the organization continue scapegoating individuals and shaping the channels of distribution to its own desires. The Electronic Frontier Foundation (EFF) is “a digital rights organization interested in issues like privacy, free speech, and the right to innovate in the digital world,” according to Media Relations Coordinator Rebecca Jeschke. Throughout its history, the EFF has tackled a number of issues, including illegal surveillance that AT&T once provided the government, and now the issue of the RIAA lawsuits ranks high on its agenda. Speaking on behalf of the EFF, Jeschke maintains that “the lawsuits are a misguided and unfair campaign…[they are] not stopping P2P file-sharing, but unfairly singling out and fining students to pay thousands of dollars.” To help those who find themselves in the RIAA’s crosshairs, the Foundation’s website offers a vast array of information, including reports of current developments and a list of lawyer contacts for those interested in fighting back.

One such lawyer is Ray Beckerman, who is currently involved in a number of high profile cases, such as Elektra v. Barker and UMG v. Lindor. He has been battling the RIAA since early 2005, maintaining that copyright infringement, at least in the terms that the law is written now, does not take place when making files available on P2P networks. “You are wrong if you think [the RIAA] is on firm legal ground,” he steadfastly claims. “[It] is basing its cases on legal theories that are unsupportable and on no appropriate evidence.” While courts may have yet to see things in such black-and-white terms, he still proves to be a valuable asset to countless defendants working against the RIAA–a battle that, in his eyes, is sure to work itself out sooner rather than later. “I do not expect it to last too much longer because the companies behind it are probably going to go belly up,” he explains. “And no bankruptcy trustee and no company that acquires their assets is going to be as stupid as they have been in pursuing this suicidal course of action.”

In the meantime, what are the options for students slapped with warnings of impending lawsuits? Unfortunately, there aren’t a whole lot of them. “When I first got [the letter] I was hopeful there would be alternatives out there, but there’s nothing unless you have the resources. There’s nobody out there doing this shit for free, and you don’t have, like, two years to let things develop, you have forty days,” laments one John Doe who was caught sharing music on the UofC network. Of course, he’s not a real “John Doe” in legal terms–that recognition is saved for the ones who get anonymously subpoenaed, like the six who have yet to settle and whose identities will eventually be named once the University complies with legal requests, if it hasn’t done so already. And while some might argue that the school should refrain from aiding the RIAA in their witch-hunts, don’t count on it happening anytime soon. “If we don’t forward the settlement letters, then the RIAA will obtain subpoenas requesting the offenders’ identities, as it did in the current instance. Once it knows the offenders’ names, it will sue them,” explains Greg Jackson, Vice President and Chief Information Officer of the University of Chicago. “Imagine that the University received a request to forward a settlement letter to an offender, and the University decided not to forward it, and then eventually the offender was sued, and then learned that there had been a settlement offer the University chose not to forward. It’s hard to see why anyone is better off in that situation.” But what about keeping temporary IP address logs à la the University of Nebraska-Lincoln, so that when the RIAA comes looking there are no fingerprints on the proverbial cookie jar? Once again, it won’t be happening any time soon. “Logs are important for many reasons–for example, tracking down individuals whose compromised computers are used to spam the campus, or whose computers are used to harass others, or to commit fraud,” Jackson explains. “I’m frankly astonished at Nebraska’s choice.”

So what’s the good law-abiding (or lawsuit-fearing) student to do? On the one hand, there’s CDs and digital retailers like the iTunes store, where you can purchase music the good ol’ fashioned way with your hard-earned dollar. Or there’s Ruckus, touted as an oasis in the desert of student pirates and audio banditry. And to an extent, Ruckus is a pretty good option. Anyone with a .edu email address can access the program for free, wherein one can find more than 3 million songs available for download. The catch? You can’t burn the songs to CD, nor can you upload them to your iPod (although other Microsoft-based mp3 players are supported). Needless to say, programs like Ruckus and SpiralFrog are a start, but catches like these will always lead students to more legally questionable means, especially as the iPod continues to dominate the mp3 player market. And of course the selection is always a factor: Let’s face it, if you’re looking for a rare or out-of-print LP, legal methods can’t always compete. Even Ms. Duckworth proved at a loss as to how one might go about procuring digitally unavailable tunes. For the time being, there is obviously no easy legal solution.

As for the future, on the other hand, it’s anybody’s guess. “A really good solution to this issue would be some kind of blanket licensing,” offers Jeschke of the EFF. “The recording industry could offer universities blanket licensing for students to share files…they could pay the licensing fee if the recording industry would offer one.” And the option needn’t necessarily be limited to college campuses. “[They could set up] a national blanket licensing plan, people could pay their ISP…[They] would pay a certain amount each month and the recording industry would get and distribute it to artists,” she furthers. It’s an interesting solution that’s popped up on many a radar, but (unsurprisingly) it’s yet another option that doesn’t appear likely to happen any time soon. Asked whether the RIAA might be interested in the proposal, Jeschke confirms, “They certainly have said that they won’t.”

So for the time being, keep an eye on industry news, for the near future promises to bring some of the defining moments of the age of the digital music marketplace. But barring any court orders that stop them in their tracks, the members of the RIAA are set to continue the barrage of legal charges. “We will continue the initiative,” Duckworth confirms. “[And] put the money [from the settlements] into education efforts and anti-piracy initiatives”–which, of course, means more lawsuits. So if you continue to download, watch out, because as Jeschke warns, “Sometimes you’re just gonna have to pay.” “If you do something illegal you have to be prepared to pay the fine,” she continues. “However, students should also work towards having the recording industry come up with a better solution so they can use this technology they want to use…They should be encouraging the recording industry to give them what they want.”