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EFF report slams RIAA lawsuit campaign, calls for flat-fee, unlimited P2P
By Nate Anderson | Published: August 29, 2007 - 01:01PM CT

Four years after the RIAA launched its first lawsuits against individual file-swappers, the Electronic Frontier Foundation takes a look back at the campaign as it has unfolded so far and concludes that "suing music fans is no answer to the P2P dilemma." So what is the answer? According to the EFF's 20-page report on the topic, it's a voluntary collective licensing regime that would let music lovers pay a few bucks a month to legally download (and keep) any songs they want.

The new report, RIAA v. The People: Four Years Later, offers an excellent overview of the recording industry's legal tactics, beginning with several cases in the early years of the decade designed to "sue the technology." When it became apparent that trying to stop individual file-sharing applications simply wasn't going to stem the tide of P2P sharing, the RIAA changed gears in 2003. Lawsuits against individuals began soon after.

As anyone with even a remote interest in the topic is no doubt aware, the record labels have since filed something on the order of 20,000 lawsuits against US individuals. At first, the RIAA issued its own subpoenas directly to ISPs (in order to connect IP addresses to individuals) using a power that it believed had been granted by the Digital Millennium Copyright Act.

But the campaign slowed down after some ISPs fought back. RIAA v. Verizon eventually went against the recording industry and forced the labels to do things the old-fashioned way: file a "John Doe" lawsuit, convince a judge of its merits, and get permission to issue a subpoena.

"This procedure was a distinct improvement over the DMCA subpoenas because it required the RIAA investigators and lawyers to follow the same rules that apply to all civil litigants," says the EFF. It also cost the RIAA more money and time. Though the EFF doesn't mention it, the RIAA generally makes ex parte discovery requests; that is, it seeks a subpoena without offering the accused a chance to respond. While this has generally been allowed simply in order to get user information from ISPs, some judges are now throwing up roadblocks to that strategy.

This year, as you know, the RIAA has focused particularly on college students, sending "pre-litigation letters" to colleges across the country when it finds evidence of illicit downloading. Some colleges have gone along with this, forwarding the letters to students, while others have refused to do so. Congress has even threatened to get involved if something isn't done soon.

What to do instead
Despite all the lawsuits, P2P sharing does not appear to be down in the US. The EFF report cites research firm The NPD Group, which found that file-swapping surged 50 percent higher in 2006 than it had been in 2005. Music trade group IFPI, however, cites a Jupiter Research study showing that regular P2P downloading was decreasing slightly in Europe even as broadband penetration surged.

In any case, file-sharing remains strong in both the US and Europe, and the EFF argues that continued lawsuits against individuals will produce only diminishing returns. "As press attention fades," says the report, "the 'bang for the buck' provided by suing randomly-chosen file sharers has diminished as well." If true, then using the lawsuits as a way to educate consumers about downloading unauthorized music could become prohibitively expensive.

In the EFF's view, the problem is a market failure; music lovers are likely to pay out and artists are likely to make enough money if only better alternatives to the current system existed. For instance, most major-label music is offered for $0.99 per song at stores like iTunes, but these typically come with DRM (unless you pay more) and cost more than music picked up on CD from the labels' own music clubs (like Yourmusic.com and the BMG Music Service).

Instead, the EFF advocates offering a better "carrot" to consumers to complement the "stick" of lawsuits (even the EFF admits that "some lawsuits would still be necessary" under its system). The idea is to create a "voluntary collective licensing regime" under which fans can pay a reasonable monthly fee and legitimately download and keep any music they want.

EFF lawyer Fred von Lohmann floated a similar idea at a high-profile DRM conference in Beverly Hills this spring, but it was met with skepticism from label execs who argued that consumers would "pay exactly once," download every album they ever wanted, and stop paying. Even assuming that this process would take months, $100 for every album you've ever wanted sounds like the deal of the century.

von Lohmann argued that consumers would keep paying in order to get access to new music. As an analogy, millions of books are in the public domain, but people continue to purchase new ones.

Such a system would have to overcome some real challenges. One of the biggest is that the EFF is advocating a "voluntary" licensing program in which the labels get together and agree to such a scheme (a government-imposed "compulsory" license, by contrast, would give them no choice). But this would create a situation where consumers might never really know if the tracks they were downloading were authorized or not. Although four labels account for more than three-quarters of the music market, literally thousands of small labels exist, many of them putting out compelling work from groups like Arcade Fire. Paying the license fee might mean that, to stay legal, consumers continually need to check the list of whose works are covered by the fee and make sure that they are downloading only from those labels or artists.

Still, if the industry could agree on a similar solution of some kind, it would seem to be a big step forward for fans and would throw open the door to increased innovation in the P2P space. Music labels have so far shown no real interest in the idea, though several have finally decided to experiment with opening up their tracks for sale as non-DRMed files. Whether this is enough of a "carrot" for customers remains to be seen.

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For the full report "RIAA v. The People: Four Years
Later":
http://www.eff.org/IP/P2P/riaa-v-thepeople.php

For more on the litigation campaign:
http://www.eff.org/IP/P2P/?f=riaa-v-thepeople.html

Read the FAQ for students faced with "pre-litigation
letters":
http://www.eff.org/IP/P2P/RIAA_v_ThePeople/college_faq.php

For this release:
http://www.eff.org/news/archives/2007_08.php#005414

the riaa will never go for anything remotely even looking like a compulsory license if they think they might not make more money than the year before for every year than forget it.

Music labels have so far shown no real interest in the idea...

...because their current plan is working so damn well.

I love the EFF and all they have tried to do for society.

However, I can't bring myself around to Fred von Lohmann's way of thinking anymore. He want's to actually save the RIAA and the music industry with voluntary collective licensing. (And, if he gets his way with VCL, he'd be right! The RIAA certainly would survive, even thrive.)

I just want the RIAA to die and get the hell out of the way.

Just Say NO to collective licensing (until the RIAA is gone and Copyright is properly fixed!)

[Then] we will talk about VCL.

Danger Danger!

Rick Ruben of Columbia Records probably agrees, or is at least sympathetic to VLC!

...oh, shit.

(Let's keep Fred von Lohmann away from Rick Rubin if its' not too late already!)

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A comment from SlashDot:

"The music and motion picture industries have always tried to maintain the status quo. If that involves going to the Supreme Court and attempting to get specific technologies outlawed ... so be it. That's why they're so dangerous: they are willing to go to any extreme to protect what they already have, and need to have new opportunity shoved up their collective asses before they recognize it. Look at the motion picture people and the VCR ... fought it bitterly until they realized they could make even more money by selling us prerecorded tapes! If the Supremes had ruled in their favor and made the VCR a contraband device they'd have lost billions! Yet they couldn't see that until well after the fact: I'd say we're not dealing with particularly intelligent people here.

The music companies are no different, and are still thinking in terms of eliminating the competition (or, in Apple's case, a middleman they never really wanted in the first place.) They have no vision, no real awareness of the possibilities, no ability to take measured risks. I believe that if there were a magic button that, when pushed, would make the Internet, data compression technology and all audio/video recordable media instantly vanish from the face of the Earth ... those bastards would trample each other trying to be the first one to press it.

Dangerous parasites, all of them." --ScrewMaster

Bravo!