When a recent Recording Industry of America (RIAA) court filing repeatedly used terms like “vexatious,” “good faith,” “frivolous,” or “integrity,” I couldn’t help but be reminded of the great swordsman-sage Inigo Montoya, whose response to a similarly questionable word choice was, “I do not think it means what you think it means.“
And isn’t it Ironic? A Little Too Ironic?
In the latest episode of unintended irony from the mouthpiece of the world’s musical Pentavirate, the RIAA has moved for dismissal without prejudice (.pdf) of their claim of copyright infringement against defendant Marie Lindor. Asking the court to sanction Lindor and attorney Ray Beckerman, the record-industry lobby describes such action as “appropriate where pleadings are filed without legal basis and for the improper purpose of supporting a bad faith public relations campaign . . . .“
To anyone who’s followed the RIAA’s litigation juggernaut, now entering its sixth year, a “bad faith public relations campaign” might sound oddly familiar. The record companies try to characterize Beckerman’s efforts as bad-faith PR in part because he posts “virtually every one of his baseless motions on his blog seeking to bolster his public relations campaign and embarrass Plaintiffs.” Not to take anything away from Mr. Beckerman, but when it comes to undermining its public image, the recording industry seems to do just fine on its own.
You say “awareness,” I say “harassment”;
Let’s call the whole thing off.
One thing you have to give the RIAA credit for is being experts on vexatious litigation and sketchy faith. Over the last five years, they have sued an estimated 30,000 people as part of an effort to “increase awareness” that downloading is illegal and that they will go after anyone they suspect of illegal file-sharing, be it a college student or a little kid, an old lady or a dead person. Hoping to avoid litigation, the RIAA’s standard approach is to offer a non-negotiable settlement of $3,750—a Hobson’s choice for the overwhelming majority of defendants for whom litigation is simply not an option. As a fallback, however, the RIAA fights tooth and nail against awarding attorney’s fees to those who decline to settle and eventually prevail.
The industry resorts to tactics that Beckerman calls “extortionate” in part because many of their cases are turning out to be less than a slam-dunk on the merits. First, the courts seem disinclined to find that “making [content] available” constitutes infringement without the “actual transfer” of copyrighted material. In fact, the Judge in Capitol Records, Inc. v. Jammie Thomas declared a mistrial after determining that he had incorrectly instructed the jury on that aspect of the Copyright Act. There’s also the problem of how the record companies find out whether a computer has copyrighted content available for downloading. The RIAA has contracted with a group called MediaSentry which “investigates” suspected computers by logging onto and downloading music via a P2P network, then taking a screen shot of the folder the songs came from. The Michigan Department of Labor recently notified MediaSentry that it could not “perform regulated activities” (.pdf) without a private detective’s license. Whether or not actions like this rise to the level of “vexatious,” they are without a doubt skeevy, to use a term of art.
Give the People What They Want.
While it’s possible that the court could find for the RIAA in this particular case, it doesn’t change the fact that, in the eyes of average consumers, the language the RIAA uses to excoriate Beckerman here applies too readily to their M.O. over the last five years. As courts continue to call them on playing fast and loose with procedure and discovery, and diminish the deterrent value of threatened litigation by setting aside high-dollar judgments and distinguishing consumers from corporate, piracy-for-profit defendants, the process will cease to be economically worthwhile. If the industry really wants to elicit support and sympathy for the legitimate bases of its position—that unauthorized downloading of copyrighted works is wrong, and that content owners should be able to protect their rights and their profits—it needs to stop acting like frustrated parents threatening to ground a petulant child. In any case, one hopes that the prevailing necessities of survival and relevance will ultimately compel the RIAA to replace tactics of intimidation and alienation with engagement and innovation. Or is such a hope so far-fetched and unlikely as to be—what was that word again?