Labels May Face Risk in Piracy Suits

As the record industry prepares to haul thousands of alleged music pirates into court, its biggest risk may be suing the wrong people -- and losing the support of leading members of Congress in the process.

Labels and artists are widely viewed on Capitol Hill as victims of rampant piracy by millions of users of file-sharing networks. And anonymous file sharers are easy to demonize.

But the real people sued this fall by the Recording Industry Assn. of America may have sympathetic stories to tell. That could turn sentiment on Capitol Hill at a time when some lawmakers are eager to narrow the reach of copyright law and expand consumer rights.

“I would guess that you would then see stories about the family

“That’s the kind of stuff that would scare a politician.”

Even Rep. Howard L. Berman (D-North Hollywood), a frequent ally of the entertainment industry, said the labels’ standing in Congress would suffer if they “overreach and refuse to settle these issues reasonably.” But, he added, “I don’t think their goal is to collect a huge amount of revenue through the vehicle of lawsuits; I think it is to deter continued illegal conduct.”

The RIAA can identify which computers are sharing songs, but it can’t easily tell who’s using them. The people it sues will be the ones who pay to connect those computers to the Internet, and could be unwitting parents and employers.

“Nobody wants to be the heavy,” RIAA President Cary Sherman said. “Everybody is aware that there could be poster children. But the alternative, which is to do nothing about a problem which is getting worse ... that’s much worse.”

The RIAA plans to start by suing the several hundred “worst offenders,” hoping that the opening salvo will deter the masses from sharing copyrighted songs. If it doesn’t, Sherman said, the lawsuits will continue.

File-sharing networks attract an estimated 57 million Americans and about 80 million users worldwide, with Kazaa alone drawing at least 4 million people sharing more than 800 million songs, movies and other digital files at any given moment.

The rise of those networks has coincided with a decline in CD sales, which have fallen more than 25% since Napster Inc. debuted in 1999.

The one bright spot for the RIAA is that its educational efforts may be making some headway -- 50% of the 12- to 44-year-olds surveyed by Edison Media Research in May said it’s wrong to download songs for free, compared with 39% last year.

The combination of relentless piracy and the labels’ increased support for legitimate sources of music online has driven up the music industry’s stock on Capitol Hill. “There’s strong recognition that what’s been going on on these file-swapping systems is theft, and there is an injured party, and it is the people who create and record and distribute music,” Berman said.

That sympathy is important because the RIAA has largely been playing defense in Washington, trying to block proposals that would weaken the anti-piracy tools in copyright law.

Examples include a new proposal from Sen. Sam Brownback (R-Kan.) that would make it harder for copyright holders to obtain the identities of alleged infringers from their Internet service providers, a change that would put a significant hurdle in front of the RIAA’s lawsuit campaign. The draft bill, which Brownback has yet to introduce, also would guarantee consumers’ ability to sell or donate the downloadable songs, movies and other digital media they buy.

Gigi Sohn of Public Knowledge, an advocacy group that’s trying to rein in copyright law, said the record labels’ campaign could backfire if they “start to go after the smaller fry” on file-sharing networks or “if they just pick the wrong person, like a congressman’s daughter or son.”

And if they mistakenly target someone who’s not violated any copyrights, as the labels and movie studios have done occasionally when sending out cease-and-desist letters, that may sink the entire campaign, Sohn said.

Rep. Rick Boucher (D-Va.), sponsor of a bill to let consumers make personal copies of digital media, said the RIAA could cause a backlash simply by suing too many people. “There will be political ramifications from vast numbers of lawsuits being filed.”

On the other hand, Berman said, lawmakers may have little trouble supporting lawsuits against constituents who violate copyrights, or suits brought against their parents.

“If a constituent called me and said, ‘My kid got picked up for shoplifting. You’ve got to change the shoplifting law.’ I’d say, ‘Tell your kid to stop shoplifting.’ And I think this is somewhat analogous.”

Rep. Chris Cannon (R-Utah), a frequent critic of the record labels, said in this instance the RIAA has a good message: “The purpose here is to get people aware of this underlying truth: Stealing is stealing, whether it’s a hard good or software.”