Why the RIAA Should Continue to Sue Filesharers

C|Net News reports that the RIAA has filed another 482 direct infringement lawsuits against John Doe filesharers (RIAA takes hundreds more 'John Does' to court).

In response, Joe Gratz does some back of the envelope calculations to determine the monetary value of the risk filesharers bear with regard to the lawsuits (The Cost of RIAA Risk). Joe Gratz concludes that the risk is about fifty-four cents per month. One could quibble with the figure, but without more data it is impossible to know how accurate it is. For example, the RIAA is of necessity targeting uploaders not downloaders. I would imagine that the uploaders are a smaller proportion of the filesharers than the downloaders. The RIAA is also targeting those sharing an unknown but relatively large number of files; they aren't going after someone sharing twelve songs, but probably one hundred or more. So, those actually targeted by the RIAA are probably a relatively small number of the number of filesharers and their risk is consequently greater.

However, let's assume that the value is this low (heck, it might be lower). Does this mean that Gratz's conclusion is correct?:

My point, though, is that the RIAA is just making everybody hate them, needlessly. If people actually ran the numbers, they’d see that while there are many rational reasons not to use P2P networks to infringe copyrights, fear of these RIAA suits shouldn’t be a significant one.

I disagree. If there is to be any voluntary solution to the filesharing issue, then legal enforcement is going to have to be part of that solution. Otherwise, even if the voluntary alternative compensation plan was $5 a month, there would be sufficient incentive to create well-functioning free alternatives and a significant free-rider problem (Thoughts on the EFF P2P Solution White Paper). I don't know for sure, but I suspect Gratz would support enforcement through lawsuit in such a case. Lawsuits would also be more effective when the number of illicit filesharers substantially decreases as people shift to licit downloading. Read on...

Now, of course, it would be great if the RIAA offered a universal blanket license for a reasonable price like $5/month. However, the world isn't a perfect place and it is going to take some time to reach that nirvana. Until that happens, however, does it really make sense for the RIAA not to launch any lawsuits?

Imagine if the RIAA had declared that they wouldn't file any lawsuits against uploaders until a blanket licensing deal had been worked out among a significant number of parties. This might have several undesireable outcomes.

Enforcing Copynorms

For example, it might further solidify the copynorm among some that filesharing without payment is legitimate. Back before the original Napster, when the RIAA went after the first people to post MP3s on their webpages, there wasn't much of an outcry. Few stood up said "How dare the RIAA sue these people!" Frankly, I don't see much of a difference between sharing files via P2P and posting them to your homepage. If one should be legal, so should the other.

Still, the RIAA hesitated for a couple of years in suing uploaders. I believe this was a mistake on their part. Had they immediately gone after direct infringers instead of solely pursuing a contributory infringement strategy (which backfired in the Grokster case), I don't think the outcry over the enforcement would have raised nearly as many hackles. I also think it would have been much more effective as the number of filesharers would have been much smaller and the rate of growth would have been slowed.

I imagine that the lawsuits have had some effect on knowledge and copynorms. Many more people know that uploading unauthorized copyrighted works is illegal. Additionally, many people are no longer uploaders, why take any risk when what you really want is simply to download for free? This can have a disproportionate effect on the filesharing networks as the number of uploaders decrease and become ever more attractive targets for lawsuits. The fact that many people are no longer uploading is probably evidence of some success on the norm front as well. As many filesharing programs default to sharing, people have to take a positive step to avoid potential liability and many are.

You Can't Sue Everyone

That was one of the rallying cries of the early Napster era. To the extent that the RIAA didn't file lawsuits by the ream, it was true. If it continues to be true, then enforcement of any blanket licensing scheme is going to be extremely problematical. The RIAA had to prove that it can go after enough infringers to be at least plausibly effective. If the RIAA went after just a handful, the campaign might not be taken seriously at all (and rightly so). Of course, now that the RIAA has started the campaign, they can hardly back down, or they will look like they cannot afford to enforce.

Although the current risk is small, it is not entirely insignifcant when taken into account with the other costs of illicit filesharing. I would say that this looks like a plausible level of enforcement, assuming you can use other means to move people to a licit service.

You Still Need a Carrot

In the end Gratz's big point is that the RIAA is just "just making everybody hate them, needlessly." For the reasons stated above, I disagree. I think this is a necessary element in solving the filesharing issue. However, the usefulness of the lawsuit strategy is predicated on the RIAA also providing a reasonably priced, non-DRM'd, voluntary subscription service (or another reasonable solution). Attempting to stop filesharing solely through a lawsuit strategy is doomed to failure and Gratz would be right. If on the other hand, the RIAA is honestly moving towards a responsible solution, than they are smart to continue the lawsuits.