Thank You for Not Sharing
Arizonans are being forced to defend themselves against high-dollar illegal-music lawsuits filed by the Recording Industry Association of America
By Mari Herreras
Deborah Weed would rather not be talking to a reporter or having her photo taken. The single mother would rather be focusing on her family, which she supports by working for a Phoenix construction company, surviving paycheck to paycheck.
Weed says she'd prefer to enjoy time with her daughter and granddaughter. Instead, much of her time is dedicated to a legal fight with the Recording Industry Association of America (RIAA).
In 2005, Weed and about 30,000 other Americans became part of what the RIAA calls its "tough-love" campaign, targeting music lovers who have allegedly shared or downloaded music illegally using the Internet.
The RIAA claims music piracy takes dollars away from the hardworking recording artists and record companies the association represents. Critics say the money generated from the RIAA tough-love lawsuits doesn't make it to the artists, but goes back into a litigation machine that randomly targets people--some guilty, others innocent.
In 2005, Weed received a letter from Cox Cable saying that her IP address had been identified through RIAA investigators who pose on peer to peer (P2P) file-sharing sites. MediaSentry, owned by SafeNet, is RIAA's investigation company of choice: MediaSentry searches America's hard drives for music files being shared via the Internet.
The first letter from an Internet company directs defendants to p2plawsuit.com, a site developed by the RIAA to provide a method to instantly settle--ostensibly anonymously. Usually, the early settlement offer begins at $4,000--even if a defendant is accused of illegally downloading just one song.
However, critics point out that $4,000 sounds cheap when faced with the possibility of hiring an attorney and going in front of a judge in federal court.
Those settlement fees rise drastically if a defendant decides not to pay--often increasing to tens of thousands of dollars as the complaint heads to legal negotiations or trial.
It's believed that only one of the approximately 30,000 suits has so far proceeded to trial: Last year, a Minnesota jury awarded the RIAA $222,000 to be paid by Jamie Thomas, another single mom, for 24 songs allegedly shared over the Kazaa file-sharing network.
It troubles Weed that her privacy has been violated. Her name is listed on what seems like endless court documents, and her case is being discussed on anti-RIAA Web sites, such as recordingindustryvspeople.blogspot.com, run by two New York City attorneys advocating for victims of RIAA lawsuits.
"Its lunacy," Weed says over the phone, her voice trailing off as she begins to cry.
Despite her tears, Weed continues talking, fueled by a desire to get her life back. She says she's considered settling her case, but she's kept wondering: Why should she pay for something that, she says, she didn't do?
Kathleen Williamson, Weed's attorney and a popular Tucson songwriter (with multiple Tucson Area Music Awards, TAMMIES, to her credit), says her client is a good example of the injustice propagated by the RIAA. That injustice began in 2003, when the association announced it was going after anyone it could identify as illegally sharing music on popular peer to peer (P2P) sites, such as LimeWire and BitTorrent.
The RIAA represents the U.S. recording-industry labels that make and distribute about 90 percent of all music produced and sold. When you look through RIAA lawsuits, member names such as Capital, Atlantic, BMG, Geffen, A&M, Sony and hundreds of others are listed as the plaintiffs.
While the litigation is presented as a way to curb piracy, Williamson and others say the RIAA is going about things in a way that is immoral, impractical and unconstitutional, leading to draconian effects on the lives of many innocent students and working-class people.
People like Weed.
"I was shocked by the whole thing, truthfully, and quite at a loss," Weed says. "This whole thing threw me for a loop. It was kind of a shock when I told them they didn't have the right person, yet they continued to pursue me."
The RIAA filed a lawsuit against Weed in 2006, and she was forced to put her life on hold. She delayed a major operation, since she didn't know how she would be able to afford taking care of herself and paying off the RIAA.
Weed breathed a sigh of relief in September 2006, when the case was dismissed because it had taken too long for the RIAA attorneys to prosecute.
"But the RIAA filed a motion to have the case reinstated, which the judge did in July 2007," Williamson says. "It was like Dracula coming back out of the coffin."
That July, the RIAA filed motions for a default judgment (a judgment on behalf of the plaintiff after a defendant doesn't respond in time). At that point, Weed was representing herself.
"I didn't have a choice. It was either me, or letting them get a judgment against me. I couldn't afford it. I kept saying, 'This is ridiculous. Why am I expected to pay all of this money for something I didn't do?'" Weed says.
As Weed's sleepless nights increased, she discovered a Tucson copyright attorney listed on the recordingindustryvspeople.blogspot.com Web site. Williamson took over the case, pro bono, where Weed left off.
Weed says she began to sleep a little better. And while she calls Williamson a blessing, Williamson heaps credit on Weed for the motions she filed with her own layman's research.
"This woman is the matriarch of her family. She is the main provider," Williamson says. "Deb is amazing. I'd hire her to work with me if she decided to go to paralegal school. She is smart and understood a lot of complicated issues she started studying after the RIAA refiled their case against her."
In Weed's case, the RIAA alleges seven songs were downloaded illegally. Williamson says the complaint is not as factually detailed as it should be under federal rules and civil procedures.
The duo expects the case to head to trial this year.
Cara Duckworth, a spokesperson for the RIAA, says the P2P anti-piracy campaign has been successful, from the industry's perspective. While organizations like the San Francisco-based Electronics Frontier Foundation (a public-rights group focusing on technology issues) contend that file sharing and P2P use among young people have increased, Duckworth says that's not the case.
"No, we are seeing a decrease. It is working," Duckworth says, from her Washington, D.C. office. "We've seen in our research that it's flattened out."
Targeting colleges--part of the RIAA campaign since February 2007--has helped. Duckworth says more than 5,000 letters were sent to 150 university information-technology offices. Although the attorney generals in Oregon and Utah have challenged the college campaigns, Arizona Attorney General Terry Goddard has not.
Paul Alvin, vice president of communications at the UA, says he's aware of the letters going out to colleges, but so far, the UA hasn't been on the RIAA target list (though Arizona State University and Northern Arizona University have). Williamson says she hopes UA officials are prepared for the inevitable, and she hopes they fight.
No worries, Duckworth says, claiming that the RIAA always maintains open lines of communication for students and university personnel to address the issue of campus piracy.
The letters delivered to IT departments at universities need to be forwarded to students once the IP addresses are matched to students. In a recent settlement Williamson handled for an ASU student, she says, it was discovered that the 35 early-settlement letters sent to ASU were never received by the students.
Duckworth says it's important that universities do not sit on the letters, as was done at ASU. As a result, the next settlement offer to the students was $1,000 higher. Williamson says she asked that the RIAA attorneys bend their rules in this instance, since the students were never given the $3,000 settlement opportunity designed for college students. The RIAA, however, ignored her request, she says.
Duckworth says she's well aware of criticism from defendant attorneys and organizations such the EFF, but says the public needs to understand that the litigation campaign is part of a three-legged stool that also educates parents and children about copyright laws and publicizes existing digital sites that are legal, such as Amazon.com and iTunes: It isn't all about litigation.
Williamson says she suggests people take a look at kazaa.com or mp3rocket.com to decide whether common folks--much less teenagers--can figure out from what is legal, and what is not. Sources such as Motley Fool have criticized the RIAA for asserting that they would rather litigate than innovate--and that litigation can often take a toll on people in trying situations, such as single parents like Weed.
Duckworth says they are not targeted on purpose.
"We have no way of knowing who is behind an IP address," Duckworth says. "There's no way of doing a socio-economic screening. We target theft. We do try to be fair and reasonable with all of our cases."
Piracy has caused a $3 billion deficit in the marketplace, Duckworth says, adding that money is being lost not just by recording artists, but many middle-class people who also work in the recording industry--a whole community of people who work behind the scenes.
"These are people who also need to be compensated," Duckworth says.
The success rates don't bode well for Weed and Williamson. So far, the RIAA is 1-for-1 in winning at trial (though the defendant has appealed), and the few District Court rulings that haven't favored the RIAA haven't deterred the industry Goliath.
"You know, the success rates aren't on our side, and the harassment (by RIAA) is endless. So far, judges seem to be ruling in their favor. It's basically impossible for most people to fight back," Williamson says.
Weed adds: "It's extremely intimidating to have these huge record companies with millions and millions of dollars in their hands coming at you. Until everyone is educated, it is going to be hard for people not to be intimidated."
However, Web sites, such as recordingindustryvspeople.blogspot.com and eff.org, have helped. The lawsuits have created a community of attorneys fighting these cases, and through these Internet sites, they share case information with each other, and get the word out quickly on changes in the industry and best practices on how to fight back.
It's how Weed found Williamson, and it's how Williamson came to collaborate with Edwin Aguilar, a Tucson attorney with Karp Heurlin Weiss, who also serves as co-counsel for Weed, along with Bruce Heurlin. Aguilar is also representing 57-year-old Roberto Sanchez in another RIAA case. Sanchez owns a small produce company and lives in Rio Rico near Nogales.
On Nov. 17, 2005, Sanchez came to Aguilar's office with the letter from his Internet provider.
"He had no clue what this was about. This case has gone on for almost three years," Aguilar says, leaning against three thick files that represent Sanchez's case--and about $50,000 worth of litigation.
Sanchez told Aguilar he did not download music or share files on a P2P site. Aguilar says his client hardly knows how to use his computer, which was primarily bought for Sanchez's children to use for school.
"I felt it was a screw job back then, and now more and more, I'm convinced that it still is," Aguilar says. "They've never had proof that my client did anything wrong. Anyone could have shared those files, but it wasn't my client."
Recently, the RIAA filed to dismiss the lawsuit without prejudice. It's a win of sorts for Aguilar and Sanchez, one that comes after an odd three-year battle. Sanchez was initially accused of using the screen name npink to illegally share dozens of gangster-rap songs; later, the plaintiff filed a default-judgment claim against Sanchez's teenage daughter, yet continued its lawsuit against him. (The default judgment against Sanchez's daughter is in litigation with a different attorney.)
Aguilar says he hopes the judge will not dismiss the Sanchez lawsuit without prejudice: That would allow the RIAA to continue on and perhaps even re-file the suit, without even a formal slap on the wrist, leaving Sanchez stuck with $50,000 in legal fees for "something the recording company did," Aguilar says.
"The company isn't stupid. They are avoiding going to trial. This case is a loser. We would love to take it to trial, because they can't win it," Aguilar says.
From Williamson's perspective, the unfair and even extortion-like challenges these lawsuits have brought to individuals are a concern, but she is also concerned about an even bigger issue: the ethics of surveillance during a digital revolution.
As more and more people use P2P networks to conduct business and online meetings, more people could be targeted through MediaSentry and other companies hired by organizations like the RIAA. Even the Motion Picture Association of America is joining the fray.
Williamson says she and other attorneys are concerned about the RIAA's use of MediaSentry as its investigator in these cases. In states, such as Arizona, investigators must be licensed--and MediaSentry is not licensed.
"If someone gets into my computer, the reality is that it's just like searching your home, or worse. You're going to get more private information from my computer than you are from my closet, metaphor intended. ... If someone gets in our computers without a search warrant or any legitimate justification, one would expect them to be operating legally and legitimately. And in this case, they're not," Williamson says.
In Arizona, it's a criminal misdemeanor to be an investigator or to conduct an investigation without a professional license.
"The only thing (RIAA investigators) can see about the identity of the person is their IP address, which changes all the time," Williamson says. "They sit there, whatever they're getting paid, probably in their own homes, sleuthing around on people's computers, finding IP addresses and seeing what they're sharing and not sharing, and for a certain amount of money, reporting IP addresses back to the RIAA," Williamson says.
"We don't know who these people are. We don't know how ethical they are; we don't know anything about them. They give this list to the RIAA, and now the RIAA has this list with times, dates and file information. They do screen shots of what they saw, which isn't the best evidence. ... How do we know they aren't doctoring the information based on what they are getting paid? How do we know?"
The investigators also watch sites like MP3rocket.com, which include a mixture of music, both copyrighted and in the public domain. One client Williamson worked with thought he was getting music legally from this site. Like most people, he didn't read the site agreement, and even if he had, Williamson says, he would have needed to be an expert on copyright law to understand it.
MediaSentry representatives did not return several calls from the Weekly.
Williamson says she counsels people to avoid P2P networks and skip downloading free music unless it's part of the public domain. She also thinks people need to start looking at music differently: For a start, support local music, and buy locally produced CDs by local songwriters. She also says music lovers should consider boycotting the RIAA, either by not buying music from its labels (see riaaradar.com for more information) or by purchasing used CDs.
Meanwhile, the music industry is trying to change how it operates. The Internet community has challenged the RIAA litigation with the notion "innovate don't litigate," and the industry may finally be listening.
According to Fred von Lohmann, an attorney with the Electronic Frontier Foundation, rumors abound that the industry is looking to create an alternative system to music sharing and downloading. However, the system wouldn't be available for a few more years. The solution: a blanket license offered by Internet service providers or other companies, for something like $5 extra a month, that allows listeners access to all music.
"They've been pushing a much more effective model, but it comes late. What are we going to say to the 30,000 to 40,000 people they've sued? They're not going to give refunds. They'll just say, 'Sorry. It just took us a couple of years to figure it all out.'"
Any apology, however, wouldn't correct the damage the RIAA has inflicted upon its reputation.
"Five to 10 years from now, people will remember how shameful the industry treated the public for so long. If you look at the big picture of who is behaving badly, is unfair or immoral, history isn't going to point to the music fans, but the industry and its lawyers," von Lohmann says.
However, von Lohmann doesn't think many people will want to give up music just to send the RIAA a message. "Most kids nowadays are sophisticated enough to know how not to get caught," von Lohmann says. "So far, if you're not sharing files, you're not going to get sued. No one has been sued for simply downloading. It's the sharing."
For now, the litigation continues. On March 5, von Lohmann plans to be in Phoenix on behalf of Phoenix resident Jeffrey Howell, who is representing himself in an unusual RIAA lawsuit that further challenges how the courts look at file sharing and copyright laws. (Williamson assisted as local counsel to help von Lohmann file amicus briefs in the Howell case.)
"It's an important issue from our perspective. It's special in several ways. It's one of the first times the recording industry is (claiming) that simply putting files on shared folders is illegal, just by simply making them available," von Lohmann says. "... It's never been considered illegal. So we think it's an important issue."
Williamson says she is grateful the EFF is helping Howell with that issue, since he has not been able to secure an attorney and is fighting his case alone.
"The RIAA would like to steamroll over him and the judge," Williamson says. "But we need a clear ruling on this issue, and the Howell case is very important for this reason."
Williamson has heard all of the RIAA's reasoning for its "tough-love" campaign, but all she sees are the lives of working people affected by the litigation and the expensive fight against the music industry.
She refers to an RIAA analogy that compared music piracy to shoplifting: When people are arrested for shoplifting, they only pay a fine of several hundred dollars and face probation. Therefore, Williamson says, it makes more practical sense for a music lover currently using online file-sharing services to "stop, get a shoplifting bag, and fill it up (with CDs) at the nearest supermart.
"Even if you get caught, it's cheaper."