File sharing settlements aren’t a legal victory

The BPI’s settlements with 23 file sharers aren’t a legal victory, because the cases haven’t been heard in court. Instead, people have settled to make the lawsuits go away, and as a result the record industry’s claims haven’t been put under the legal microscope.

Of course, it’s possible that had the file sharers ended up in court, they’d have lost badly and ended up having to pay even more damages; however, it’s equally possible that the cases might have been thrown out, or the damages reduced to a negligible amount. To win in court the BPI would have to demonstrate that file sharing equates to lost sales, and for every survey that suggests that’s the case there’s a survey that says the exact opposite. A verdict in the BPI’s favour is not a foregone conclusion.

As with the RIAA’s actions, the BPI’s actions make me very uncomfortable. As file sharing is covered by civil rather than criminal law, legal aid won’t be available to the defendants; as a result, even if they won in court the legal process would be horrifically expensive. So what’s happening here is that the BPI is going after people who could possibly win a court case, but the cost of that court case would be much, much more than the cost of settling out of court. Settling doesn’t necessarily mean that people are guilty; it just means they can’t afford a lawyer.

Back in August, I wrote about the RIAA’s out of court settlements:

anyone targeted by the record industry is faced with Hobson’s Choice. If you fight and lose, you could end up being fined hundreds of thousands of dollars; if you fight and win, you’ll still face thousands of dollars in legal fees. As a result, the RIAA can demand sums of $3,000, $5,000, $10,000 from the people it accuses of file sharing, safe in the knowledge that any sensible person would pay up.

In effect, the record industry doesn’t have to prove that it’s right, or that the people it’s targeting are breaking the law; it just needs to have more money than the people it targets. Guilt or innocence are utterly irrelevant.

We’ve already seen how that can be abused; last year, Lawrence Lessig described the way in which copyright law and big firms’ deep pockets can be abused: a programmer who developed a search engine was targeted by the RIAA on the grounds that, because his search engine could also find MP3s, it was clearly a tool designed solely to make musicians homeless. I blogged about it back in August:

it’s pretty clear that the developer wasn’t trying to create a tool for pirates, but instead was essentially trying to build a Google-style service for his university network. However, fighting the case in court would have cost $250,000 *even if he won*, while the statutory damages in US copyright law meant that had he lost, he could have been liable for up to $15 million in damages. Faced with Hobson’s Choice, the developer handed over his life savings to the RIAA to get them to withdraw their lawsuit.

There’s a line in the BPI press release that, unintentionally I’m sure, demonstrates the problem:

“These settlements show we can and we will enforce the law.”

The last time I checked, enforcing the law was the courts’ job.

8 thoughts on “File sharing settlements aren’t a legal victory

  1. Stephen says:

    My feeling on this is that people are (understandably) overly afraid of the legal process, and its costs. It’s true that hiring a lawyer is a huge expense. But it’s also true that the courts are concerned that justice is done, and if you arrive at court, without representation, and explain that you are being sued by this huge corporate entity, with a couple of solicitors and barristers to argue its case, while you are not sure what you have done wrong, I bet the court will have a sympathetic ear. It’s likely that the judge will require the plaintiffs to explain, to your and to his satisfaction, exactly what they allege you to have done. If you’ve ever had to explain something computer-related to a non-technical person, you’ll know that it is not that easy, and that’s just to get them to understand. Add in the legal burden of proof, and suddenly it’s not a walk in the park. Once you start telling the judge about spyware that downloads itself onto your computer when you just surf a website, that runs without your knowledge and does the Lord knows what to your helpless machine, it won’t be so easy to prove that you knowingly made copyright material available. If you had an understanding boss or some leave it might be well worth spending a few days in court. It won’t cost you more than your time, while you can sit there in the satisfaction that legal bills in the hundreds of pounds per hour per team member is mounting up for the other side. I think their strategy would quickly change. (Yes, I have had legal training.)

  2. david says:

    Why are these people allowed to do this? Surely their conduct has been unethical if not illegal? Price fixing, intimidation, misrepresentation, anti-competitive behaviour and so on.

  3. david says:

    I did not say that their conduct was illegal – I said that it might appear to be from an outside perspective. I stand by the unethical bit. But I am not an expert in the machinations of these organisations. Some examples that, to me, seem unethical are below. These are obviously just the actions as seen from my perspective so I may be being unfair (for example the BPI members may be doing all of these things because if they don’t then cute little puppies will die) in which case I will happily apologise…

    Changing the commercial charts to not reflect record sales but airplay which is almost entirely decided by the record companies is surely against the spirit of the charts. Another part of this is the strategy where they release a record weeks, if not months before it is available in the shops, artificially inflating the percepted popularity so when it is actually released it sells more.

    Increasing the cost of CD singles but decreasing the actual content (less actual songs and more album tracks and remixes, which devalues the product) – and using this as a basis for pricing of online content.

    Selling non-red book compliant CDs as CDs – not to mention the fact that they are trying to limit the use of certain playback devices.

    Using DRM with the rationalisation that it is the content that you are paying for and not the media when only a short while ago they made everyone buy all their old vinyl on CD.

    There are also reports of certain companies involved in the recording industry polluting file-sharing networks with corrupt data which, as far as I am aware is actually illegal as this is a DoS attack.

    Releasing more than half of an album as singles (without extra value content) to maximise the cost to the user.

    Manufacturing bands to market entirely at the pre-pubescent market – which in nearly every other industry has been condemned.

    Suing individuals in civil court when it is clear that unless the person is rich then they cannot afford to defend themselves even if in the right – then the plaintiff’s claiming a judicial victory when it is clearly not the case.

    Making claims about how much file-sharing is destroying record sales when the figures do not support this.

    Mass buyouts and mergers which have dramatically reduced the amount of record companies – effectively creating a monopoly. I obviously do not have evidence of anti-competitive behaviour. Also I believe that there is a conflict of interest that some of these companies either own or have a stake in some of the largest audio hardware and computer equipment manufacturers so they can implement technology that is not in the interests of the consumer.

    As far as I was aware, libel is publishing material that is known to be false in order to hurt someone’s reputation. As far as I am aware this is not the case. I don’t think that anything I could say could damage their reputations. They seem to be doing a pretty damn good job of it by themselves. ;-)
    P

  4. gusto says:

    “To win in court the BPI would have to demonstrate that file sharing equates to lost sales, and for every survey that suggests that’s the case there’s a survey that says the exact opposite.”

    Hmm, the survey may show that sales have gone up but I’d imagine it wouldn’t be too hard to argue that although they’ve gone up they haven’t gone up as much as they would have done if those pesky kids weren’t pirating music.

  5. Gary says:

    Oh, I agree. But just because an organisation argues something doesn’t make it true :-)

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