The Recording Industry Association of America said lawsuits are now a part of its past, as the organization is moving forward with the development of a new approach to tackle online music piracy.
The RIAA said it will, however, continue with suits already in progress, including suits filed against university students. But the association said it will no longer send universities prelitigation letters to be forwarded to students.
Notices of violation of the Digital Millennium Copyright Act of 1998, or DMCA notices, however, will continue to be forwarded to universities, but they are not preliminary steps of a lawsuit, the RIAA said.
In August, according to a statement from the RIAA’s Chairman and CEO Mitch Bainwol, the RIAA stopped initiating new lawsuits and began an approach in which the tradegroup works directly with multiple leading U.S. Internet service providers.
The RIAA declined to comment on the specific ISPs it has formed agreements with.
During the summer, the RIAA also worked with New York Attorney General Andrew Cuomo, who, according to Bainwol’s statement, suggested that the RIAA end its lawsuit strategy and begin working directly with ISPs.
Under the new approach, which the RIAA said is still undergoing changes and developments, ISPs receive statements from record companies about an infringement, and the ISP then continues on with what the RIAA is calling a “graduated response program.”
The RIAA said the program will consist of ISPs placing increasing sanctions on copyright infringers who receive multiple notices for violations. The implementation of the program will likely vary between different ISPs, the RIAA said, and record companies can still file lawsuits against individuals who ignore DMCA messages an ISP forwarded to them.
Bainwol is optimistic about the new approach.
“Relative to litigation, a graduated response program is far less blunt, far more efficient and, we believe, ultimately far more effective to protect the property rights of the music community,” Bainwol wrote in the statement.
Lory Lybeck, a lawyer from Lybeck Murphy law firm, said the RIAA is basically developing a “three strikes and you’re out-style” approach. Lybeck said he has worked with some of the 17 Oregon students whose education records were given to the RIAA by the University. The RIAA allegedly found the students’ Internet protocol addresses associated with copyright infringements either from illegal downloads or file sharing on peer-to-peer networks.
Because the RIAA said it will follow its standard litigation with ongoing and pending cases, lawsuits against each individual student associated with one of the 17 University IP addresses can be filed. Lybeck said he believes at least one of the students has already chosen to settle with the recording companies.
The recording industry filed a John Doe lawsuit as a placeholder suit against the 17 students, who were identified only by their IP addresses. In October the University released records to the RIAA identifying the students. The original Doe lawsuit was dismissed at the end of October, but no individual lawsuits against the students have been filed.
A female junior who received a letter from the University saying it was going to release her education records to the RIAA said she received verbal confirmation from her lawyer that she will not be pursued in a lawsuit, and that her records were never released to the RIAA. However, she said she has not received confirmation from the RIAA or the University that this is true.
The junior, who wishes to remain anonymous to avoid conflict with the University, said the lack of available, understandable information about such cases makes the process extremely intimidating.
“All I knew was large corporations with exorbitant amounts of money were trying to sue me,” she said. “I think this is why so many people settle with the companies. A regular person on the street doesn’t understand the RIAA’s legal process.”
Lybeck, who is critical of the RIAA’s former litigation process, remains skeptical about the new approach. One of the reasons for his skepticism, Lybeck said, is the fact that the RIAA is continuing to pursue claims and suits that have already been filed against individuals.
“If the RIAA is seriously abandoning its mass lawsuit approach, why is it continuing to file suits?” Lybeck said. “How does it make sense to spend tens of thousands of dollars in litigation costs, if it is changing its approach?”
In his statement, Bainwol wrote that the lawsuits were the recording industry’s last resort in attempting to combat online music piracy.
“When we originally initiated the litigation program some five years ago, we made clear that lawsuits were not our preferred response. We simply had no other alternatives,” Bainwol said in the statement. “A whole generation of kids was growing up with the practice and concept that it was okay to take our music without paying for it. Schools chose not to engage. ISPs were busy building broadband penetration and didn’t have an appetite to engage on copyright issues.”
During its litigation process, the RIAA has filed more than 30,000 lawsuits, with only one going to trial, RIAA spokeswoman Liz Kennedy told the Emerald in October.
During the last few months, ISPs have forwarded more infringement statements to their customers than the RIAA filed lawsuits in the course of its five-year litigation program, according to Bainwol’s statement.
The RIAA has also discontinued its work with MediaSentry, a private investigator, and said it has began working with Danish private investigator DtecNet. If MediaSentry saw illegal file sharing or downloading, it would download a copy of the index of the infringer’s share directory and some of the sound recordings, according to an e-mail that MediaSentry spokeswoman Donna St. Germain sent the Emerald in November. During its work with the RIAA, MediaSentry did not “enter into another user’s computer or take information that is not publicly available,” according to the e-mail.
The RIAA said its disaffiliation from MediaSentry was a standard business move and had nothing to do with its new approach.
Lybeck, however, said many lawyers, including himself, questioned the legality of MediaSentry’s process and privacy issues. Lybeck also said some concern arose regarding whether MediaSentry should have been licensed as a private investigator in states.
Last year, the RIAA’s litigation process was also attacked by Harvard professor Charles Nesson, who questioned the constitutionality of the process.
RIAA chairman Bainwol, however, said in his statement that the lawsuits generated a level of awareness and understanding of copyright law.
“…We chose our least preferable, but only option – lawsuits against end users,” Bainwol said in the statement. “That decision was encouraged by many in Congress and the Department of Justice, which felt that self-help was the appropriate and responsible act of any copyright owner.”
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