Peer-to-peer (P2P) file sharing network hubs received simultaneous assaults by the Recording Industry Association of America (RIAA). Some industry figures have sharply criticized the RIAA's tactics as wrong-headed and counterproductive. Has the RIAA's latest assault on users of a potentially legal competing distribution channel carried it into the antitrust minefield? (Read more...)
RIAA presaged its main attack with reconnaissance strikes on selected targets that partially shaped the legal and tactical battlefield. In September, a force majeur push included several hundred lawsuits against network hubs, described as the more eggregious participants in the offering of large quantities of recordings copyrighted by RIAA members. Within days, some information about defendants emerged, and RIAA's first tactical victory was disclosed: a $2,000 settlement paid by the mother of a 12-year old defendant.
At the same time, RIAA's "Clean Slate Program", offered limited amnesty to those who used various P2P file sharing systems to download or share copyrighted works, if they submitted a potentially self-incriminating "Clean Slate Program Affidavit". No amnesty was offered to those not using P2P networks to copy or share copyrighted works.
On behalf of P2P network users, a lawsuit against RIAA has been filed, alleging unfair and deceptive practices in connection with the Clean Slate Program, and at least one United States Senator, Norman Coleman, (R. Minn.) has indicated that an investigation of the program is appropriate.
Some recording artists and labels have expressed support of P2P file sharing, due to increased exposure they do not get through the existing system. Further factual research may show the numerical proportion of the RIAA such group represents, and what percentage of the industry revenues accrue to such group.
Some have suggested that RIAA is missing the opportunity to negotiate for the conversion of the "outlaw" peer-to-peer network (lets call it P2P Net) into a licensed, low-cost channel for distribution of recordings and payment of artists. Some suggest that such a system would result in increased opportunities for new, "independent" artists and labels and would increase the supply and reduce the price of recordings in the market. For example, Tim O'Reilly suggests that the RIAA is more concerned about the dominant publishers losing their control of the market than in the interests of copyright holders.
One of those is John Synder, President of Artist House Records, who in February presented a formal proposal titled "Embrace file-sharing, or die" to the New York chapter of National Association of Recording Arts and Sciences (NARAS). His extended remarks review the state of the recorded music industry, suggest recent drops in CD sales are not due to piracy, and is highly critical of RIAA, about which he said: "They overstate their position, misinterpret their own data, and make dubious claims for artists' rights when the biggest abusers of artists' rights are their benefactors, the record companies themselves."
In a note at LawMeme, Ernest Miller speculates that the controversial litigation against file sharers "just might be part of an extremely clever plan of the RIAA's to get the law changed to outlaw Kazaa. "
Has RIAA strayed into the antitrust minefield?
Although "all is fair in love and war," this is just interstate commerce. Even conceding the lawful monopoly rights of copyright holders, the RIAA's tactics raise some interesting issues of antitrust law on which legal scholars can chew. Let the chewing begin with these debatable issues:
Query: Does RIAA's combined campaign go beyond legitimate enforcement of copyrights in the market for recordings and extend to an attempt to restrain competition in a separate but related market: the marketplace for distribution services?
Query: Does RIAA's Clean Slate Program constitute an attempt to intimidate consumers into a boycott of a potentially lawful competing distribution channel (P2P Net), in order to maintain its members' power in the market for distribution services?
Query: Does the RIAA's combined campaign result in economic harm to certain recording copyright holders and to recording consumers by restraining competition from P2P Net in the market for distribution services?
Query: In the event of any affirmative answers to the above queries, is RIAA's combined campaign included within qualified immunity doctrines such as (but not limited to) that described in Noerr Motor Freight?
The issue of copyright abuse was addressed briefly in the 2001 Napster decision. The court acknowledged it as a potential defense, but found a lack of evidence supporting it in that case. A scholarly paper by Daniel J. Gifford explores the developing law in this area. Will new evidence emerge in the discovery processes of the new lawsuits filed this week?
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