September 26, 2018

File Sharers Targeted Next?

Declan McCullagh, at CNet news.com, predicts that we will soon see criminal prosecutions of a few people who make extensive use of file sharing software. He cites RIAA rhetoric and congressional rhetoric supporting prosecution, and he reiterates the relevant laws, which dictate surprisingly stiff sentences for violations.

Orin Kerr, at the Volokh Conspiracy blog, disagrees. He points to his experience as a DOJ official, and says that decisions about whom to prosecute are typically made by Assistant U.S. Attorneys (and not centrally in Washington), and that most of the decisionmakers would rather spend their limited resources going after drug dealers, kidnappers, and the like.

The elephant in the closet here is the lack of civil lawsuits against file sharers by the recording industry. If I were a Federal prosecutor, I would be asking myself why I should spend tax dollars on prosecuting someone for file sharing, when none of the victims of that file sharing are willing to bring any civil suits against file sharers.

Why would the RIAA support criminal prosecutions but not civil suits? The obvious explanation is that they fear a backlash from their customers if they file aggressive lawsuits. But won’t the backlash be even larger if the FBI hauls somebody away in handcuffs at their behest? I’m sure they saw what happened to Adobe when it engineered the arrest of Dmitry Sklyarov.

My bet is on the theory expounded by Jonathan Zittrain, as quoted by Hiawatha Bray in yesterday’s Boston Globe. The RIAA will try to put pressure on ISPs to become enforcement agents, by putting on a DMCA squeeze. The DMCA gives ISPs a limited safe harbor from liability for their customers’ actions, but it also allows various legal strategems that the RIAA could use to pressure ISPs into compliance.

The RIAA still appears to be afraid to sue file sharers. This can’t bode well for their future. If your business model depends on people complying with a law, and you yourself have the power to enforce that law but are not willing to do so, you have a problem.