Only 'substantial' file-sharers targeted by RIAA

Out-Law News | 20 Aug 2003 | 12:00 am | 2 min. read

The Recording Industry Association of America (RIAA) says it is not targeting the average file-swapper in its most recent anti-piracy campaign, only those "illegally distributing a substantial amount of copyrighted music". The explanation came in an RIAA letter to the chairman of a Senate Committee investigating the music industry's actions, although it shed no light on what would be considered 'substantial'.

The RIAA announced in June that it would be turning its attention to individual pirates, not just the file-sharing networks, like KaZaA, which facilitate file swapping. Since then it has served a flood of subpoenas under the controversial US Digital Millennium Copyright Act (DMCA), ordering ISPs to identify targeted individuals.

Senator Norm Coleman, Chairman of the Senate Permanent Subcommittee on Investigations, wrote to the RIAA on 31st July, expressing concern "that the industry was taking a 'shotgun' approach to identifying and prosecuting potential violators."

The RIAA's President, Cary Sherman, replied to Coleman on 14th August, confirming that over 1,075 subpoenas had been issued since 25th June.

He said the RIAA is "in no way targeting 'de minimis' users." He continued that the RIAA is "gathering evidence and preparing lawsuits against individual computer users who are illegally distributing a substantial amount of copyrighted music."

Sherman didn't specify what a "substantial" number would be.

The RIAA explained its targeting. In general terms, it uses software that scans the public directories available to any user of a peer-to-peer network. These directories, which allow users to find the material they are looking for, list all the files that other users of the network are currently offering to distribute. When the software finds a user who is offering to distribute copyrighted music files, it downloads some of the infringing files, along with the date and time it accessed the files.

Additional information that is publicly available from these systems allows the RIAA to then identify the user's ISP. The RIAA can then serve a subpoena on the ISP requesting the name and address of the individual whose account was being used to distribute copyrighted music.

Under the DMCA ISPs must provide copyright holders with such information when there is reason to believe copyrights are being infringed. The RIAA can then sue the individual, although no court actions have yet been filed under the current campaign.

The RIAA assured the Senator that any actions taken would be on a 'fair' basis, citing recent settlements with four students for between $12,500 and $17,000.

Sherman wrote, "No industry likes to be in the position of suing those it hopes to convert to paying customers."

He continued, "Just like any retailer who pursues those who shoplift merchandise from their stores, the music industry is simply enforcing its property rights against those who are stealing its music."

In a statement Senator Coleman said that he was gratified by the assurances but remained concerned about the potential for abuse of the subpoena process established in the Digital Millennium Copyright Act and making sure the punishment for violators fits the crime.

"While the RIAA has not yet filed any copyright infringement lawsuits, the RIAA has promised to 'approach these suits in a fair and equitable manner,' Coleman said. "I look forward to continue to work with the recording industry to ensure that the process is indeed fair and equitable."

This is a sentiment echoed by public pressure group NetCoalition. It has sent its own letter to the association expressing concerns about what it calls the RIAA's "legal fishing expedition" – particularly as there is no judicial oversight of the subpoena demands.