Digital Rights Network

The American content industry is feeling a bit chipper at the moment. With the recent judgements of Grokster and Kazaa having gone, to a significant extent, their way the MPAA and RIAA clearly hope that the demon spectre of unpaid file sharing can be brought under control, if not exactly *their* control. The Grokster case laid a potential for liability on a technology innovators. The Kazaa judgement in turn mandated that judicially enforceable anti-infringment technology be incorporated into Kazaa. They will hope that this sets a trend for any technology with a potential for infringement. Perhaps all these will, in time, become well controlled distribution channels, forcing consumers to pay their monopoly prices for a diet of the usual high quality boy bands and highly original Hollywood plots with Tom Cruise.

Things look even better when you add into the revenue stream the RIAA's new business development strategy: litigation threats for profit. Not that they have ever had to take anyone to court. If you were 12 year olds would you use your pocket money to buy CDs or would you prefer to fund litigation defence against the record industry? Exactly. Everyone settles at the price they set; setting non-negotiable prices for things that are rubbish is something they know how to do. They have even set up a specific outfit called the Settlement centre to do this on an industrial scale. Reports indicate that settlements typically range between $3000 and $6000. We are told that this settlement average leaves them with a net profit after the costs of arranging the mugging are taken into account. And none of this, one suspects, makes its way into the hands of the 'poor starving artists'.

At least up to now, that's the way it has been. However Ms Patricia Santangelo was accused of copyright infringement via a p2p system and was invited to settle out of court with the settlement centre. Failing which she would be sued. So far so good; they just needed to get her to sign a letter admitting responsibility and agree to write a big fat cheque and then they'd have another $5000 settlement under their belt. The problem was that she didn't even know what p2p, let alone kazaa, was. The best speculation was that It may have been her child or a child's friend. Either way she bridled at the accusation and refused to pay. Enter stage right heroic New York lawyers Beldock Levine Hoffman, who are representing her and are now even asking to take on other clients to resist the RIAA. This threatens to put a brake on the RIAA's scheme: the moment lawyers, rather than - minimum wage - settlement centre negotiators, get involved the costs escalate to the point of unprofitability. If this presages a trend in the US then the whole strategy falls into chaos. Here's hoping.

You might think that the Americans would leave foreigners to be dealt with by their overseas branch offices such as the British Phonographic Institute. You would be wrong. I have recently acquired several clients in both Scotland and England who run bit-torrent web-sites. The usual p2p complaints are made: massive deliberate infringement for profit. But it just isn't so. The MPAA don't care that, like most bit-torrent websites, these are hobbyist sites run by film enthusiasts who wish to share their passion. No-one wants a passionate enthusiastic customer right? While it is certainly true that a significant amount of infringing went on in all cases, the site operators were powerless to stop it short of shutting the sites down, and some felt compelled to do just that by the MPAA threats. The problem with a small site run by one person and manned by a few volunteer moderators is that they simply lack the capacity to monitor many thousands of postings a day. At the moment no technology exists which is able to automate the process of preventing torrents of infringing materials being posted.

All that can be done at present is to trust to the goodwill of moderators and users. Oh, and the MPAA could always help by telling the sites of infringing material rather than stmpeding in with litigation.
The sites could do as some of the avowedly legal sites do and download each torrent to see if it infringes. But this renders the site hopelessly slow: one would go from sharing tens of thousands of files, many legal, to sharing tens of files. This would be suicide and it would deprive lawful users of a valuable resource; just to protect the interests of a small self-interested group, rather than the whole of a newly technological society. One suspects that the MPAA would much prefer the sites to die.

It isn't necessary to sue the web-sites out of existence: most sites are happy to delete torrents if notified that these are infringing. That however would be pointless to them as the MPAA is not interested in peaceful coexistence, they want victory. Bittorrent as a technology interests them if it can be made to serve their interests alone. If it can be used to remove their need for a large expensive network infrastructure to distribute movies then well and good, but it has to be tamed first. You may feel their profits and prices are high enough that asking you to pick up the tab with your broadband capacity, possibly capped, is somewhat of a liberty.

Like Patricia Santangelo my clients have done no wrong and have acted properly; they also intend to defend themselves . I hope that in the UK p2p users and providers will demonstrate courage against the threat of US IP bullying. Some of us in the legal profession will be pleased to assist.

Geeklawyer

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