Monthly Archive for December, 2008

From: Cary Sherman
Date: Mon, Dec 22, 2008 at 3:09 PM
Subject: FW: AP: Music industry drops effort to sue song swappers
To: Charles Nesson

Hi Charlie.

Saw your comments in the AP story below. I hope you understand that we can’t just walk away from cases we’ve filed. Doesn’t mean we want to litigate everything, we’d obviously prefer not to. If you have any thoughts on a resolution, I’d be all ears.

Sorry I couldn’t tell you months ago that we were getting out of the lawsuits, but I’m sure you understand.

I hope you have a great holiday (and don’t have to spend the holidays working, now that you’re a litigator!).

Please give my best to Fern.

Cary

Music industry drops effort to sue song swappers

By RYAN NAKASHIMA – 27 minutes ago

LOS ANGELES (AP) — The group representing the U.S. recording industry said Friday it has abandoned its policy of suing people for sharing songs protected by copyright and will work with Internet service providers to cut abusers’ access if they ignore repeated warnings.

The move ends a controversial program that saw the Recording Industry Association of America sue about 35,000 people since 2003 for swapping songs online. Because of high legal costs for defenders, virtually all of those hit with lawsuits settled, on average for around $3,500. The association’s legal costs, in the meantime, exceeded the settlement money it brought in.

The association said Friday that it stopped sending out new lawsuits and warnings in August, and then agreed with several leading U.S. Internet service providers, without naming which ones, to notify alleged illegal file-sharers and cut off service if they failed to stop.

It credited the lawsuit campaign with raising awareness of piracy and keeping the number of illegal file-sharers in check while the legal market for digital music took off. With two weeks left in the year, legitimate sales of digital music tracks soared for the first time past the 1 billion mark, up 28 percent over all of last year, according to Nielsen Soundscan.

“We’re at a point where there’s a sense of comfort that we can replace one form of deterrent with another form of deterrent,” said RIAA Chairman and Chief Executive Mitch Bainwol. “Filing lawsuits as a strategy to deal with a big problem was not our first choice five years ago.”

The new notification program is also more efficient, he said, having sent out more notices in the few months since it started than in the five years of the lawsuit campaign.

“It’s much easier to send notices than it is to file lawsuits,” Bainwol said.

The decision to scrap the legal attack was first reported in The Wall Street Journal.

The group says it will still continue to litigate outstanding cases, most of which are in the pre-lawsuit warning stage, but some of which are before the courts.

The decision to press on with existing cases drew the ire of Harvard Law professor Charles Nesson, who is defending a Boston University graduate student targeted in one of the music industry’s lawsuits.

“If it’s a bad idea, it’s a bad idea,” said Nesson. He is challenging the constitutionality of the suits, which, based on the Digital Theft Deterrence and Copyright Damages Improvement Act of 1999, can impose damages of $150,000 per infringement, far in excess of the actual damage caused.

Nesson’s client, Joel Tenenbaum, faces the possibility of more than $1 million in damages for allegedly downloading seven songs illegally, which Nesson called “cruel and unusual punishment.” The case is set to go to trial in district court in Massachusetts on Jan. 22.

Brian Toder, a lawyer with Chestnut & Cambronne in Minneapolis, who defended single mother Jammie Thomas in a copyright suit filed by the RIAA, said he is also set to retry the case March 9 after a judge threw out a $222,000 decision against her.

“I think it’s a good thing that they’ve ended this campaign of going after people,” Toder said.

“But they need to change how people spend money on records,” he said. “People like to share music. The Internet makes it so easy. They have to do something to change this business model of theirs.”

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