Labels aim big guns at small file swappers

The Recording Industry Association of America has so far concentrated on prominent file-swapping software and services. Now it's going after the little guys.

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In its most serious crackdown yet on file swapping, the Recording Industry Association of America said it will gather evidence against individuals who trade songs online and slap thousands of them with copyright-infringement lawsuits.
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Bolstered by recent court rulings that make it easier to unmask individual file swappers, the music industry trade group said it will launch a massive campaign Thursday to target individuals who offer "substantial amounts" of music through peer-to-peer networks.

"Once we begin our evidence-gathering process, any individual computer user who continues to offer music illegally to millions of others will run the very real risk of facing legal action in the form of civil lawsuits that will cost violators thousands of dollars and potentially subject them to criminal prosecution," RIAA President Cary Sherman said in a statement.

The RIAA said it will scan the public directories of peer-to-peer networks to reveal files that people are sharing and detect their Internet service providers. The association will then serve subpoenas on the ISPs to identify the individuals. It expects the first round of suits to be filed as early as August.

The RIAA has stepped up its pursuit of file swappers in recent months, but this plan marks the largest effort yet to file lawsuits against people who actually trade music. In late April, the RIAA tapped into chat functions in file-trading tools Kazaa and Grokster to send messages to users warning them that they're breaking the law.

Copyright attorney Mark Radcliffe said the decision to follow up on the legal threats isn't surprising, but that the RIAA is going to have to balance its pursuit of illegal traders with the possibility of alienating consumers.

"It's obviously a high-risk strategy, because you're suing your own customers," said Radcliffe, a partner at Gray Cary Ware & Freidenrich, which is based in Palo Alto, Calif.

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The RIAA has lined up nearly three dozen artists, including Missy Elliott, Shakira, Eve and the Dixie Chicks, to support its plans to sue music fans.

"We work really hard," Eve is quoted as saying in an RIAA release. "We love our fans and we appreciate the love, but don't steal from us, support us. Go in the stores and buy the records."

David Munns, CEO of the EMI record label, a member of the RIAA, said the decision to pursue legal action wasn't easy.

"Obviously, it's not a pleasant operation; no one wants to sue their customers," said Munns. But, he said, "I don't want my customers stealing our product."

Munns said it's naive to believe peer-to-peer fans who claim the networks help the music business by providing samples or introducing people to new bands, adding that the numbers don't bear that out. Music sales have fallen to $26 billion in 2002 from $40 billion in 2000, according to the RIAA. Until recently, the music industry focused its efforts on the creators of technology that allows people to trade files--including Napster, Scour and Aimster--not on the users themselves.

That strategy changed earlier this year, when the RIAA sued four university students it said ran services that searched computers connected to their college networks for MP3 song files. The students settled with the RIAA in May, with each agreeing to pay between $12,000 and $17,000.

This time around, the RIAA is not only pursuing suits against people who run mini-services, as the students did, but is also training its legal guns on those who actually trade the files. The RIAA said people who trade lots of files would potentially be the biggest targets, but that there is no cut-off: Anyone who swaps unauthorized copies of songs could get snagged.

Independent music store owners, studio managers and a software anti-piracy group have also signed on to the RIAA's new legal efforts.

"P2P is an impressive technology, and nothing should make us lose sight of its potential," said Robert Holleyman, president and CEO of the Business Software Alliance, a trade group representing major software companies. "Yet, there are illegal uses of this technology that necessitate actions such as the strategy announced today by the RIAA."

The RIAA's move was fueled in part by rulings in two separate cases that dealt with online music. In one case, a judge ruled in April that the makers of Grokster and Morpheus aren't liable for copyright infringing occurring as a result of people using their peer-to-peer software, leaving the labels little choice but to go after individual file swappers.

"It's one of the few strategies left," Radcliffe said.

In the second case, an appellate panel earlier this month ordered Verizon to turn over to the RIAA the names of people suspected of trading massive amounts of unauthorized files. This ruling will pave the way for copyright holders to more easily identify people who trade pirated files on peer-to-peer networks.

ISPs are bracing for what Verizon Vice President Sarah Deutsch called "an avalanche of subpoenas," as the labels turn to service providers to help them identify file swappers. She said there's no mechanism in place under the subpoena process to ensure that customers aren't mistakenly targeted or that their personal information is only used for the purposes of the lawsuit.

She also worries that other copyright holders might follow the RIAA's lead, putting ISPs in the middle of the copyright debate and forcing them to spend time and money processing thousands of requests to identify subscribers who haven't been proven guilty of anything.

Some activists who have fought the RIAA's crackdowns on Napster and other file-swapping technology predict that the strategy will backfire.

"I don?t think the lawsuits are going to put a dent in file sharing," said Fred von Lohmann, an attorney for the Electronic Frontier Foundation. He noted that file swapping has grown despite efforts to rein in Napster, Grokster and others.

Instead, von Lohmann predicts the legal threats will spawn better file-trading technology that will make it even harder to track swappers. "It really is unprecedented to sue your best customers," von Lohmann said. "It's plain that the dinosaurs of the recording industry have completely lost touch with reality."