April 18, 2014

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RIAA Critics, and their Critics, Debate Lawsuits

Last week the EFF released a report criticizing the RIAA’s lawsuits against individuals accused of P2P infringement. Some commentators have criticized the EFF. Tim Lee at Tech Liberation Front summarizes their argument:

I’m ordinarily sympathetic to the EFF’s arguments, but in this case, I agree with Adam [Thierer]:

“OK Fred, then what exactly IS the answer to the P2P dilemma? Because you don’t favor individual lawsuits, you don’t favor P2P liability, or much of anything else. This is what infuriates me most about the Lessig-ites; they give lip service to the P2P problem but then lambaste each and every legal solution proposed. In my opinion, if you can’t even support the lawsuits against individual users, then you essentially don’t believe in ANY sort of copyright enforcement.”

People who don’t like the RIAA’s litigous agenda need to come up with a workable alternative. Too many people on the anti-RIAA side like to criticize every attempt to enforce current copyright laws without suggesting alternative enforcement mechanisms, and without proposing an alternative legal regime. I’m not comfortable with simply shrugging at wide-spread piracy and telling the RIAA to lower their prices and stop whining.

Arguments about the lawsuits often get bogged down in confusion over exactly which argument the lawsuit opponents are making. There are three types of anti-lawsuit arguments.

A moral argument against lawsuits says that bringing the lawsuits is morally wrong.

A pragmatic argument against lawsuits says that bringing the lawsuits isn’t the most clever strategy for a self-interested RIAA to follow.

An empirical argument against lawsuits says that the lawsuits are not reducing infringement.

You can believe any subset of these arguments (including the empty set) without logical inconsistency. For example, you can believe that filing lawsuits is wrong but that doing so will help the RIAA by reducing infringement. Or you can believe that the lawsuits are morally justified and will reduce infringement but still aren’t the cleverest thing for the RIAA to do.

It goes without saying that each of the three arguments is either justified or not, so that some subset is correct to believe. My point is merely that no subset is logically inconsistent.

The EFF report combines threads of all three arguments. They argue at times that the lawsuits are unfair, beating up on defenseless grandmothers. They argue at times that the RIAA would be better off forgoing lawsuits. And they argue at times that the lawsuits are not reducing infringment. Although they don’t make it crystal clear, my reading is that the EFF is making all three arguments.

The Thierer/Lee criticism – that lawsuit critics have an obligation to suggest an alternative course for the RIAA – applies only to pragmatic arguments. If you believe a pragmatic argument, then you must believe there is something more clever the RIAA can do; and you should tell us what that is. But if you’re making a moral argument or an empirical argument, then you have no obligation to describe a better plan, because you’re not asserting that there is a better plan.

This is a common fallacy in policy analysis: assuming that whenever there is a problem, the solution must be some kind of bold new action. Sometimes bold action is just what’s needed. But sometimes bold action doesn’t solve the problem. Sometimes it only causes new problems. Sometimes your problem has no solution and your best course is to suck it up and figure out how to live with the problem.

Breaking down the anti-lawsuit arguments this way tells us one more imporant thing about this debate: there aren’t just two sides. There are at least eight logically consistent positions one could take – one for each subset of the three arguments – and I’m quite sure that more than two of those eight positions can be backed by plausible arguments.

If people are clearer about which arguments they are making, and which they aren’t making, maybe we can make some progress in this debate.

Comments

  1. Jeff says:

    I think you can easily subdivide the pragmatic argument even further. For example, I could believe that lawsuits are not the best way for the RIAA to curb piracy, and then may be obligated to present a better way to prevent piracy.

    But I could also believe that the lawsuits are not the best business decision for the RIAA to follow. In which case I am only obligated to present what I believe to be a better business strategy. That strategy could validly be to “stop whining.” because I believe the economic value of the goodwill that is lost by the lawsuits exceeded the economic benefits of the reduction in piracy resulting from the lawsuits. This argument is especially valid if I support the empircal position that the lawsuits do nothing to curb piracy.

    I would agree that this argument has been made and rejected by the RIAA, and therefore, it would be better for us to move on to different options. As have the arguments supporiting conpulsive licensing schemes, price reductions, and non-drm digital downloads.

    Then again, we may decide that perhaps the RIAA doesn’t care about our suggestions and isn’t listening to us anyway at which point, “stop whining” again becomes a viable answer.

  2. Tom Poe says:

    “People who don’t like the RIAA’s litigous agenda need to come up with a workable alternative. Too many people on the anti-RIAA side like to criticize every attempt to enforce current copyright laws without suggesting alternative enforcement mechanisms, and without proposing an alternative legal regime. I’m not comfortable with simply shrugging at wide-spread piracy and telling the RIAA to lower their prices and stop whining.”

    Quite an unexpected mouthful. I’m one of those on the anti-RIAA side that wants the RIAA to lower their prices and stop whining . . . . and change their charter/disappear. My position relies on something your position doesn’t, i.e., I don’t accept the current copyright laws as workable. Open Studios is an alternative legal “regime” (whatever that means) that utilizes a compromise provided by the Creative Commons project, as well as a demonstration of that legal regime carried through to practice. What’s interesting, is, that we’re but one quite viable alternative solution.

    I hope I didn’t take your leading premise too literally, and will try to come back and read through the rest of your opinion at some point, maybe. :)

  3. Greyhound says:

    The solution is very easy:

    1. Produce product that people want.
    2. Do it often.
    3. Make it easy to buy.
    4. Sell it inexpensively.

    People will buy it. I really doubt that most people would
    begrudge an artist his income and would pay for the
    product rather than steal it.

    The RIAA arguments fall short when they claim they are loosing their
    shirts to pirates while their clients are making record profits and the
    artists get shafted.

  4. Mark Christiansen says:

    I think it is appropriate for publishers to sue copyright violators. The problem I have with the lawsuits is not so much the decision to sue but the atronomical statutory damages. They allow the RIAA to threaten those they sue with absolute financial ruin giving the settlement process a flavor of extortion. Copyright penalties should be tied to actual damage done and most often this damage is minor.

    It is not the industries decision to sue which offends me but the lack of proportional justice in the law.

  5. Will says:

    I believe that the first paragraph after the quoted portion is actally part of the quote.

  6. Karl says:

    “I’m not comfortable with simply shrugging at wide-spread piracy and telling the RIAA to lower their prices and stop whining.”

    I’d suggest you GET comfortable, because that’s the answer.

    What’s the very worst that happens, music stops being commoditized, music industry execs have to find other jobs, and music returns to its original form: simply a cultural form of expression, available for free to anyone within earshot of a voice or instrument?

    Part time-musicians make music they love, freely distributed via Bit Torrent?

    Oh yes, the absolute HORROR of that.

    Why just imagine, Clear Channel would collapse. How horribly, horribly sad.

  7. Matt says:

    Super distribution is the alternative to lawsuits .With the Superdistribution Model uploaders are rewarded with a sytem credit for promoting and distributing content around the network and distributors can compeate with Free becuse thier downloads are paid for buy people who want a quick fix and cant be bothered with trying to maximise thier credit earning potential .Also the contnet they purchase from credits can exceed its original vale they paid for it dependant on the amount of uploads they provide for that content /

    Peer Impact uses the Superdistibion model to full effect and may easilly compeate with ‘Free’ in the near future .

    http://www.peerimpact.com

  8. Fred von Lohmann says:

    Of course, lost in Adam’s critique of our report is the fact that it includes a proposed alternative solution. Adam appears not to have read the last several pages. Or the more detailed description of EFF’s proposed alternative, collective (not compulsory) licensing, which has been on our website and discussed in many fora for two years.

    Unfortunately, most critics of our proposal either (1) deliberately misconstrue it as a compulsory license, which it is not; or (2) conveniently pretend that we offer no alternative, even after it is called to their attention.

  9. JEF says:

    I hate to break it to everyone, but the RIAA has NOT been litigious. If they were truly litigious, they would refuse to settle and push for full statutory damages (something like $150,000 per song).

    I see this strategy ultimately coming. It may not even be the RIAA that employs it. Imagine a lawyer who independently (of the RIAA) recorded some songs. He sees his songs are on a p2p network and brings a lawsuit for full statutory damages. No settlement terms are offered. After the suit is won, the lawyer tries to collect against the defendants home equity (or homeowners insurance for that matter).

    I remember a few years ago when the RIAA was suing Napster, and everyone said “don’t sue an innocent service; sue the people who are trading the files.” Today, the battle cry is “make these cases go before a jury, don’t let the RIAA offer settlements that are cheaper than legal fees.”

    Be careful what you ask for, you just may get it.

  10. Tim says:

    Professor Felten,

    Those are good distinctions to draw. I was mostly making the moral argument. However, my point was that the moral argument has some consequences. In particular, if you think it’s wrong to sue people who are clearly breaking the law, then you should be willing to say that copyright law (at least as it applies to online distribution of music) should be repealed.

    Now, there are certainly some people who do say that, and we can have a debate about whether that’s a good idea. But in many cases, the people criticizing the RIAA take umbrage at the suggestion that they’re anti-copyright. Or, at a minimum, they’re conspicuously silent about it.

    So, does EFF favor repealing copyright law? If they do, I haven’t read about it. I know they’ve talked about various collective licensing schemes, either voluntary or collective. But my question is: even if a compulsory license were enacted, what happens when a rogue P2P network decides it would be cheaper to continue operating without paying the license fee? Would Fred support suing individuals then? Or is enforcing copyright law against individuals never ok?

  11. Anonymous Howard says:

    I do not feel compelled to offer any alternative practice to justify my opinion that the RIAA is overly litigious, engaging in bad business, and morally bankrupt. If we were discussing some direct function of government, which might be changed by referendum or ballot, I’d be inclined to offer alternatives because that is what citizens do. But I don’t see why I need to do the work of the industry for them for free. Imagine if banks built their vaults out of cardboard, but kept complaining that about getting robbed. Would we tolerate that? Would the police keep responding to their 911 calls? Would taxpayers fund their overly litigious practices? Would the banks expect the public to solve their problems?
    Here’s the bottom line: the music industry delivers digital masters of their product into the market place, and there will always be more piracy tomorrow than today. Maybe the truth is this: there is an ever-dwindling profit potential in recorded music. Maybe in the long term the only profitable future for music is in live entertainment. And maybe the RIAA is prepared to thoroughly thrash our legal system, trample individual rights, and revamp the very notion of intellectual “property” to avoid such a future. But maybe it’s coming anyway, and the only question is how much damage will be inflicted between now and then.
    Anyone remember the five stages of grief? Which one is the RIAA in?

  12. Tim says:

    Thoroughly thrash our legal system, trample individual rights, and revamp the very notion of intellectual “property”.

    It seems to me that the RIAA is merely exercizing their rights under the law. The law says that unauthorized distribution of copyrighted music is illegal, and the RIAA is taking those who violate that law to court for damages.

    If you think they shouldn’t be doing that, doesn’t that imply that you think the law should be changed? And if so, shouldn’t you be willing to say what the legal regime ought to look like?

  13. john says:

    I agree with howard: it’s not up to the customers to solve the music industry’s problem for them.

    As for the litigation, it’s mainly financial intimidation; so far, not a single suit has proceeded to trial where we might find out exactly what our legal system thinks of this. With a few exceptions that have started popping up, people settle because they can’t afford the cost of going to trial.

  14. Kelly says:

    The problem I have with the RIAA lawsuits is that the person sued is in a lose-lose situation. If the person settles, they face a financial penalty from the RIAA. If they don’t settle, they face a financial penalty in lawyer’s fees no matter what the outcome of the case. This is why people are calling the lawsuits ‘legal extortion’ Essentially they are being told “pay us a couple of thousand dollars, or bad things will happen to your family’s financial situation”

  15. MathFox says:

    To Tim: It seems to me that the RIAA is merely exercizing their rights under the law.
    If you ignore the fact that the RIAA was one of the organisations that pushed very hard to get the law modified to protect their interests better, your comment makes sense. If you realise that the RIAA has a strategy of eroding the legal rights of their customers, and that the recent settlement offers are using the legal powers the RIAA members gained in the recent changes in law, one starts assuming that the RIAA is “gaming the law”.
    The RIAA has the problem that the business model of shipping and selling plastic disks with music is outdated, Internet distribution is cheaper and offers the music listener better choice. For the record companies it’s adapt or perish.

  16. Peter Clay says:

    I’m in favour of the lawsuits, because they are both (a) legal and (b) unfair, which will increase pressure to get the law changed back to something sensible.

  17. Luke says:

    The alternative is very simple, and historically proven to work. If you can’t compete with p2p, embrace it! Work it into your business model. Entertainment industry already survived the arrival of the cassete tape recorder, a VCR, a CD burner and a DVD burner. They embraced each of these technological advances and they were better for it.

    Either that, or at least attempt to make a product that I will want to buy. Consider that Sony DRM deal. Why would I ever want to buy a CD with a rootkit? Especially if I can download the same songs for free? I want to give Sony my money but if I do they will break my computer.

    Me personally – I will simply give up on that record and elect not to listen to it at all. Unfortunately, even if I don’t download RIAA will pencil my refusal to buy their record under the column labeled “Losses Due to Piracy”. The magical formula in Entertainment industry these days seems to be: if it doesn’t sell, it must be due to piracy.

    So what am I supposed to do? I’m damned if I do, I’m damned if I don’t! We can all collectively stop file sharing tomorrow, but I guarantee you that RIAA would still attribute all it’s loses for the next 20 years to file sharing. And they will keep suing too. Because if they stop now, it will make them look like bozos. Stopping the lawsuit train now would be like admitting that they were wrong about this whole thing in the first place. They won’t stop, unless they are stopped by some 3rd party (like a judge, the government, or a really big loss in the court that will set them back).

    You say that there is more than one valid and logical case against the lawsuits. I say that is great! If it’s possible to build a valid and relevant case against the lawsuits in more than wan way, it only shows that there is something fundamentally wrong with them.

    To one of the commenters above: Jeff, RIAA’s lawyers are litigious! But they will do anything to avoid actually going to court. This is because most of the time they have a very weak case that may or may not stand up in court. Despite the whole hype around this, it is really not that easy to extract few thousand dolars from a tax paying citizen based on one screenshot (and most of the time that’s all they have to go by).

    If one of these lawsuits actually goes through, and RIAA looses this will actually put a dent in their legal fund, Ands in addition it will affect all the other money extortion attempts by setting an example to follow by other judges. And they really don’t want that.

    The RIAA/MPAA lawsuit business is just a nice little terrorist operation designed to scare potential “pirates”. The whole thing is self-sufficient so they need a steady flow cash from the settlements to sue new people. There is no way they could ever extract the full amount they quote as damages from an average file-sharer anyway. They are not doing this for money – they are using this as a scare tactic.

  18. j_mhz says:

    Perhaps their motives are less obvious.
    A lot of money has been made extorting settlements from people by threatening lawsuits.
    Many lawsuits and no real effect on piracy can ‘demonstrate’ to legistlators the need for more and better powers. Powers that may even erode things like the public domain (such as non-expiring DRM and the DCMA), transcoding and timeshifting rights and access for the impaired which these people are very opposed to.
    DRM and laws to enforce it are a great tool for market leverage and may be less about stoping copying than protecting markets ( as the labels have learn’t to their cost with iTunes and the iPod Fairplay ).
    So in fact so called piracy allows them to extract thousands from individuals and call for more legistlation to protect thier markets and future markets ( and hopefully controll all technology and innovation ).
    Far from wanting to curb file swapping type copyright infringement, it is in fact highly beneficial to the music cartels, not to mention the free market research and the empirically demonstrated fact that is either has no effect on sales or in fact can increase sales as does radio.
    If any moral or pragmatic arguments are to be used then artists must be paid more and treated better, this will encourage more culture.

  19. Carl says:

    To Kelly:
    I don’t think the “lose-lose position” thing is a very good argument against the lawsuits. You could use the same argument in the case of somebody who commits a crime and becomes a hunted fugitive: they could either turn themselves in and go to prison, or continue as a fugitive; a lose-lose position. It’s not always unfair if someone is in a lose-lose position.

    (Note that I am carefully not arguing in favor of the lawsuits, because I haven’t decided yet what I think about them. I’m only arguing against this anti-lawsuit argument.)

  20. Mark Christiansen says:

    Before we turn Share into a dirty word we should consider the fundamental problems imposed by copyright. Copyright takes something which is abundant and makes it scarse. When people can copy what they need our society as a whole is richer. The only way this is a problem is by defeating the incentives which cause people to create original works.

    This is part of why the phrase intellectual property is so damaging to the debate. It urges people to think of copyrights like they were physical property which is naturally scarse and not subject to duplication. Steeling is a very different thing form infringing copyright. When someone steels your car you can not use it to drive to work. If someone could copy your car what harm you might take is indirect at most. Copyright and intellectual property are not good things, they are painful compromises aimed at providing incentives to authors to create and share their works. We can try to think up ways to defend copyright but it is not an end to itself. Fair compensation to authors and musicians and those who create the works we use is what we need. Do that with ready copying and we are all much richer.

    In the past copying was only available to people with printing presses or CD stamping machines and so forth. Now it is available to everyone, cheap and convenient. Imposing copyright restrictions no longer just constrains publishers. Enforcing laws against copying resembles enforcing laws against drinking. Due to its wide spread nature and people’s accepting attitude toward it traditional policing is ineffective. Two methods remain.

    One is to make penalties out of proportion to the offense. Statutory penalties in the hundreds of thousands of dollars bear no relation to the value of an illicit recording. They are clearly there to make examples of a few scapegoats and scare the rest. Doing this is unjust and brings disrespect to our laws and system of justice. Of course this scare tactic is exactly what is going on with the RIAA’s lawsuits.

    Another is mechanical enforcement, DRM. It too has some effect sacrifices our freedom. What would otherwise be our property to use as we please becomes burdened with detailed use restrictions. Those restrictions are put in place by publishers and reflect their goals of maximising revenue typically through market segmentation. Posessions under DRM turn out to be more rented than owned, temporary and restricted from sale, gift or loan to other people. Important uses such as critisism, research, quotation and archiving get blocked as well. We suffer annoying complexity as the simplicity of ownership is replaced by myriad DRM rules which are typically changeable at will by the publisher.

    Enforcing law by computer is a dangerous precedent. Should our cars have breath meters built in which don’t let us drive without first giving a puff? People die every year to drunk driving and meters would save a great many. How about computer enforced speed limits? Does your workplace use a clock punch? How would you feel about it if they started?

    Add to this the gross inefficiency which our present system of copyright and publishers delivers incentive money to those doing the actual creative work. Musicians get pennies out of a CD. Programmers get salaries which represent in sum percentage points of software revenues. Copyright certainly is not working well.

    We need a completely new way to handle these things which are not intellectual property. They do not resemble physical property and the ways we trade them and account for them should not either. What new way should it be? I don’t know.

    It should not be required to know the answer to oppose problems with how things are working now. The RIAA is using the cost of our legal system and threat of enormous statory penalties to bully and extract large payments from people who’s actual offenses if any are much smaller. DRM does more to segment markets, make works disposable and block fair use than prevent copyright violations. No one should be oblidged to refrain from arguing against these things because they don’t know an answer that makes everyone happy.

  21. Kelly says:

    “I don’t think the “lose-lose position” thing is a very good argument against the lawsuits. You could use the same argument in the case of somebody who commits a crime and becomes a hunted fugitive: they could either turn themselves in and go to prison, or continue as a fugitive; a lose-lose position. It’s not always unfair if someone is in a lose-lose position.”

    True, but note that in this case, the guilt or innocence of the person sued has little, if any bearing on the results. If the victim of a lawsuit happens to be guilty, they are punished no matter what they do, which is fair. However, if they are not guilty, they are still punished, either by giving in and paying a fine, or by fighting and paying huge legal bills.

    About the only way that an innocent person could get out of this sort of trap would be to A) fight the case. B) win, and C) be awarded legal costs. I’m neither a US citizen nor a lawyer, but I just don’t see much of a chance of getting all three conditions, especially the last one. Certainly not enough of a chance that I’d be willing to mortgage the farm on the outcome.

  22. enigma_foundry says:

    The solution is easy: have courts start protecting peoples civil rights which are continually being violated by large corporations with impunity. If they continue assaulting people with lawsuits claiming exorbitant and criminal ($150,000 per violation) damages, soon those values will be changed to something more realistic, like say $10.00 per song.

    If the normal democratic processes to changing these fines are blocked by large corporations, I fully expect we will see someone commit an act of terrorism against Sony or some other large corporate pig. This would be truly unfortunate, but entirely predictable example of how humans can be expected to react to be mistreated.

    The behavior of these corporations will feed domestic anti-corporate terrorism, which will be a truly unfortunate, but avoidable occurance.

  23. Mothra says:

    To Karl:
    I find your misty-eyed nostalgia somewhat confusing. I am racking my brains to remember a time when music was “simply a cultural form of expression, available for free to anyone within earshot of a voice or instrument”.

    I’ve been on this planet for 33 years and, as far as I can remember, music has always been something you pay for, whether it be a ticket to a concert, a record, tape or CD, or even throwing a few coins in a busker’s guitar case.

    Just how far back in time do you have to go to find people who would dedicate their professional lives to creating music without expecting any kind of payment in return?

  24. james says:

    Mothra,

    I think Karl said “part-time.” You can find people today who just love to create music, go to any coffee shop/bar and ask someone who doesn’t do it for a living.

    http://www.google.com/search?hs=PZ1&hl=en&lr=&client=firefox-a&rls=org.mozilla%3Aen-US%3Aofficial&q=musician+%22not+for+*+money%22&btnG=Search

    What is clear is that RIAA is forcing scarcity in a post-scarcity environment. The millions of downloaders want to compensate/support artists, not RIAA. The business model is rife with inefficiency, and widespread support of music sharing is a testament to how much we think an infinitely reproducible song is worth. The artists deserve to make a fantastic living, but not at the expense of millions of people that want to listen to their songs. This was always the goal of copyright: a trade-off between creation and public benefit. We need to find a balance of supporting artists, and getting music out as efficiently, cheaply, choice-laden and as widespread as possible. Current copyright law, limitless artist’s profits, and mostly RIAA are all stifling this goal vis-a-vis mainstream artists and a forteriori independent artists. Either they will all eventually disappear, or they will be litigated into subsistence via the economic notion of “artificial scarcity.”