p2p news view / p2pnet: There’s little doubt in the minds of consumers that individual file sharing lawsuits are a bullying tactic by the major record labels. The cost of defending lawsuits is extremely high and the potential for maximum wilful statutory damages of $150,000 per song mind blowing. For most of the 19,000 US citizens targeted, the settlement of around $5,000 is the only option available.

The record labels justify their actions in legal terms – the law is being used as a deterrent – by demonstrating that file sharers aren’t anonymous, that liability is very real and that the record labels intend to defend their outdated business model despite the public backlash – the aim is to advertise to other file sharers that they can and will be held accountable.

But how realistic is this notion of deterrence?

In an article published a few months after individual lawsuits commenced, academics predicted that 5% of file sharers would need to be targeted before the general public would consider themselves to be at risk. Until such time as this level of liability was reached, users would consider themselves unlikely to be caught and would continue doing what they wanted. Those that were caught would just be considered unlucky rather than actually persuading people to change their behavior.

Estimates at the time that individual lawsuits commenced suggested there were 60 million file sharers in the United States. This means that for individual law suits to be an effective deterrent, three million people would need to be sued. So while 19,000 is no small number, it’s absolutely nowhere near what would need to be done for the record labels tactics to be effective.

The failure of these suits to persuade people has been consistently demonstrated by the regular increases in the number of file sharers since individual lawsuits began. Adding to this, a report from December 2005 showed only 2% of customers of paid services such as iTunes purchase their music because they fear being sued by the record industry.

Taking into account the 19,000 who’ve already been commenced, if the record labels were to continue suing 750 people a month from now on, it would take them over 331 years to reach a level of actual deterrence. And that’s provided the number of file sharers remains static over this time (which of course it hasn’t, and wont).

Global warming will surely catch up with us in the meantime.

It’s time for the record industry to acknowledge that individual file sharing lawsuits are just plain wrong. The tactic has no chance of preventing people from sharing music. Those who are targeted aren’t just unlucky, they’re victims of corporate power, and those who do elect to purchase music on-line are doing so out of their own free will, not because they’ve been intimidated into doing it.

JunkGarage, p2pnet – Australia

Sources:
M A Lemley & R A Reese, ‘Reducing digital copyright infringement without restricting innovation’ (2004) 56 (6) Stanford Law Review 1345
EFF, File-Sharing: It’s Music to Our Ears (2003) http://www.eff.org/share/ at 5 May 2006
MP3newswire, Ipsos-Reid: Only 2% of Consumers Care About Legal Issues With Downloading Music (8 December 2005) http://www.mp3newswire.net/stories/5002/tempo2005.html at 21 March 2006

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