The Wall Street Journal and others are reporting that the Recording Industry Association of America is adjusting its strategy for combating the massive infringement occasioned by the sharing of music files over the internet. Since 2003, that strategy has been to pursue copyright infringement cases against individual file sharers. The RIAA now says it will focus less on pursuing infringement litigation and more on working with internet service providers to shut down the accounts of individuals suspected of illegally trading files.
This is the third wave in the recording industry’s attack on digital piracy:
- First wave: The labels went after the purveyors of the software used in file sharing. There are reported decisions involving Napster, Aimster and Kazaa, not to mention the U.S. Supreme Court decision in MGM v. Grokster.
- Second wave: The thousands of lawsuits against individual file sharers. Though it’s said that the RIAA sued some 35,000 people, only one of those cases went through to verdict (the Jammie Thomas case). Most settled for a few thousand dollars.
- Third wave: Rejection of the massive litigation model (announced today) and collaboration with ISPs to combat file sharing.
So what does this change in strategy tell us? Does it mean that the RIAA has given up and the file sharers have won? It’s hard to tell. But there may be some insight to be had into the broader picture of digital copyright enforcement. Here are some observations:
- The ability to easily make innumerable perfect copies creates a problem for copyright holders that must be addressed at a systemic level (like at the ISP level). The suits against individuals are too much like whack-a-mole to have practical effect.
- The question of whether merely making a copy available can be infringement is problematic. So it was probably a good time for the litigation to end so that that question doesn’t have many more opportunities to be answered unfavorably for the RIAA.
- It makes less sense to think of copyright in terms of the right to “copy” as it did in the analog-only world. What’s more important now, it seems, is a distribution or access right. Another reason to focus on the ISPs and not the individuals. For more on this, see the work of Ernest Miller and Joan Feigenbaum, Taking the Copy Out of Copyright [Warning – PDF file].
- Shifting to a model of “punishing” file sharers before claims of infringement can be litigated presents some issues that implicate due process. See Cindy Cohn’s comments in this article.
- Regardless of the legal merits of one’s claim (i.e., the RIAA certainly has legitimate rights to enforce), there is a public relations downside to standing up for those rights.
No matter what the shift of strategy really means, the fact that there is a shift at all demonstrates the changing dymanic of the music industry. And it points to a shift, both practical and normative, in the manner copyright law applies to the digital content.