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"The RIAA made the wedge wider and the hammer blunter by filing lawsuits targeting the largest group of file-sharers to date (532) while simultaneously lowering its threshold for 'egregious file-sharing' (860 avg. files). But in a new tactic that will prove controversial in its own right, the targets have been lumped into the smallest number of lawsuits to date: Four (three in NY, one in DC).
The four so-called 'John Doe' suits are filed against 532 anonymous individuals, but grouped according to their Internet service providers in an effort to force the ISPs to disclose the identities of the those customers. None of the ISPs were identified by the RIAA.
Once the RIAA secures the identities of the 532 customers, en masse, it intends to (once again) attempt to negotiate individual settlements (or drop charges entirely), narrowing the number of ISP customers it would then continue to pursue in court via the original lawsuits.
The dragnet approach could be challenged by the ISPs as a transparent attempt to rebuild most of the 512 (h) 'rubber-stamp subpoena' shortcut eliminated by the RIAA v Verizon reversal in the DC Circuit this past December. The ISPs could argue that the 532 John Does should be treated as individuals, warranting 532 separate actions.
While the key Verizon legal strategist for that landmark case, Sarah Deutsch, has stated the telco would abide by any new subpoenas issued by a judge from these latest lawsuits, she did not promise they would not go unchallenged.
Additionally, she hinted that judges might need little outside persuading to regard the new lawsuits with great skepticism over the increased burden their steady processing would place on the court system - essentially transforming federal judges into a rubber-stamping arm of the RIAA and the greater copyright industry.
Until now, 'John Doe' suits have been a relatively rare sight in US courts and those are usually heavily scrutinized by judges loathe to betray a citizen's privacy without demonstrably good cause. Even the Justice Department finds it can fail to satisfy a judge's benchmark in such cases.
But as private businesses seeking civil redress, the record companies may find the judges - and the law itself - to require a less demanding standard before issuing the identity subpoenas.
The dragnet strategy is a response to the December court ruling which the RIAA hopes will secure a sympathetic refinement of the legal issues and procedure and streamline burgeoning litigation costs. It is also designed to create an escape valve from inevitable embarassments and to leverage settlements - a goal RIAA execs reiterated in today's statements as fundamental to the PR value proposition of the continuing lawsuit campaign.
The tactic further signals that the trade lobby intends to explore every potential loophole as a way of delaying a definitive ruling on the fundamental copyright issues at stake. Critics claim it's part of the record industry's larger strategy to starve P2P businesses and other entrepreneurs out of the game and thus increase traction for the labels' currently favored Pay Per Download stores now launching at a dizzying rate.
Putting aside for the moment the tenable conclusion that suing individuals only works to counter-purposes by increasing off-market growth, the John Doe process is a a political time-bomb.
Technology experts note the uncertainty of IP addresses (the ID number that tells where to find a computer or other device on the Internet) as definitive identifiers of identity and activity, citing both the ISP practice of assigning 'dynamic' rather than 'static' addresses to subscribers (i.e., the IP addresses are randomly assigned and recycled among their customers) and the widespread ability to tap into wireless networks, allowing anonymous passersby to access the Internet via Wi-Fi then disappear like ghosts.
And, because the very nature of the John Doe suits gives the RIAA no ability to screen out potential martyrs or legislator and music industry families beforehand, the record companies will eventually uncover people it will regret having named. The labels will then be exposed to all the negative publicity and market fallout the targets' subsequent treatment will bring (whether its preferential or antagonistic, depending on their relationship with the industry) - and the tangible political response that will accompany the public (and perhaps personal) outrage in an election year.
The prospect of an on-the-stump Congressman's daughter being named by the RIAA is a P2P consumer's dream and the record industry's nightmare. It is an outcome the record companies hope to avoid by dragging for groups of John Does via the ISPs, rather than suing each individually.
Senator Norm Coleman (who has previously challenged the RIAA's tactics in Congressional hearings last fall and is planning a comprehensive P2P Summit this spring) denounced the record labels' reliance on "fear of the courts" as "unfortunate and misdirected."
The San Jose Mercury News estimated that the record companies' lawsuits to date have roughly netted a modest $700K in settlements from fewer than 300 of last year's targets. Not one penny of that money is being distributed to artists, but is rather being recycled to fund more lawsuits. It is a policy that will do little to assuage the growing anger and resentment of the populace or the more tangible pain of those find themselves sued.
And all this risk-taking comes at a time when the record industry is trying to ride the momentum of a holiday recovery in order to convince those same lawsuit targets and their millions of consumer peers that they should patronize the labels' blossoming etail outlets? There is an intellectual and emotional disconnect with the real world that is explicable only as the mindset of a rampaging bully clouded by rage and self-loathing, willing to pull down its own house just for spite.
There'll be lots to talk about at Senator Coleman's upcoming P2P Summit."
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