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.