By: James DeSantis,

The battle against Internet piracy has been raging for almost two decades. The release of Napster in June 1999 marked the beginning of a Golden Age of peer-to-peer file sharing where billions and billions of dollars of copyrighted materials were plundered with near impunity. Blindsided by a precipitous drop in album sales, the Recording Industry Association of America (RIAA), a trade organization representing the recording industry, has consistently tried to stop the hemorrhaging of industry revenue by any means necessary.

Initially spending years focusing their legal efforts at shutting down P2P file-sharing services, legal action against individuals, or end-users, engaging in the illegal sharing of copyrighted material began en masse in 2003 when the RIAA filed hundreds of lawsuits against individuals identified to have committed Internet piracy.[1] Over the next five years, the RIAA would go on to file more than 30,000 lawsuits targeting alleged copyright infringers comprising a significant percentage of all intellectual property litigation in the country.[2] Aimed at striking fear into the heart of would-be downloaders, the RIAA lawsuits relied on filling mass “John Doe” copyright infringement lawsuits listing hundreds of defendants at a time.[3]

Mass John Doe lawsuits are an ingenious legal strategy utilized almost exclusively to prosecute copyright infringement. First the plaintiff identifies the unauthorized downloader’s Internet protocol address (IP address) and then files hundreds, sometimes thousands, of lawsuits against John Doe, or an otherwise unknown defendant. The plaintiff is able to file a single lawsuit against multiple defendants by invoking Rule 20 of the Federal Rules of Civil Procedure for the permissive joinder of parties.[4] After the lawsuits has been filed, the plaintiff asks for a court ordered subpoena compelling the Internet service provider (ISPs) to provide individual account holder information matching the IP address.[5] Once the ISPs turn over the individual user’s relevant identifying information (i.e. their name and address), the RIAA uses the threat of litigation to extract a settlement from the user.[6] The RIAA’s end user lawsuits were usually settled for $2500; the intrepid individuals who tried fight the RIAA lawsuits were highly publicized for subjecting low level offenders to lengthy court battles and excessive damages.[7]

Although it is impossible to determine the long term net effect of RIAA’s mass fillings of lawsuits against individual music fans had in tackling the issue of music piracy, one indication that the policy was of limited success is the RIAA’s decision to abandon the strategy in 2008 for other approaches.[8]

One of the RIAA’s more recent concerted efforts to tackle piracy, known as the “six strikes initiative” or Copyright Alert System, involved a cooperation between the five biggest ISPs and copyright owners that entailed sending warning notices to individual customers caught violating copyrights. The more strikes a customer receives the more threatening the letters become with the fifth and sixth letters alerting the copyright offender that his internet speed will be temporarily reduced to 256kpbs for two to three days as punishment.[9] In total, the “six strikes policy” sent out 13 million copyright notices with offenders becoming less and less likely to offend with every subsequent notice. Despite the promising data, the Copyright Alert System lasted four years before being shelved in early 2017.[10]

As of 2018, the RIAA is does not have any plans to go after individual copyright infringers instead focusing their efforts on prosecuting torrent sites and their administrators. It seems that the RIAA has learned that just because a battle should be fought does not mean that it can be won.

 

[1] David Kravets, File Sharing Lawsuits at a Crossroads, After 5 Years of RIAA Litigation, Wired, Sept. 4, 2008, https://www.wired.com/2008/09/proving-file-sh/.

[2] Matthew Sag, IP Litigation in United States District Courts: 1994 to 2014 (January 14, 2016), 101 Iowa L. R. 1065 (2016).

[3] Id. at 113.

[4] Fed. R. Civ. P. 20(a)(2).

[5] Felicia Boyd, The End of John Doe Copyright Suits in the US?, Intellectual Property Magazine (Sept. 2012), http://www.btlaw.com/files/Uploads/Documents/Publications/028-029_Sept_2012-FO.pdf.

[6] Sean B. Karunaratne, e-Case against Combating BitTorrent Piracy through Mass John Doe Copyright In infringement Lawsuits, 111 Mich. L. Rev. 283 (2012).

[7] Jemima Kiss, BitTorrent: Copyright Lawyers Favorite Target Reaches 200,000 Lawsuits, The Guardian (Aug. 9, 2011).

[8] Sarah McBride & Ethan Smith, Music Industry to Abandon Mass Suits; The Wall Street Journal (Dec. 19, 2008).

[9] Adrianne Jeffries, Internet Providers Launch Controversial Copyright Alert System, Promise ‘Education’ Over Lawsuits, The Verge (Feb. 25, 2013) (256kbps is a little bit faster then typical dialup speed).

[10] Corinne Reichert, Copyright Infringement Alert System Abandoned in US, The Verge (Jan. 30, 2017).

Image Source: http://www.zdnet.com/article/censorship-creep-pirate-bay-block-will-affect-one-third-of-uk/.

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