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Rights and wrongs in the antipiracy struggle

RIAA President Cary Sherman says the music industry's response to the theft of creative works helped rescue a business under siege.

Why Jammie Thomas?

That question was posed in a CNET story last week, as well as in other commentaries regarding a copyright lawsuit won by the RIAA. It's worth revisiting why we, the Recording Industry Association of America, do what we do and how we got to this place.

From the moment we announced in June 2003 that we would be gathering evidence for the purpose of bringing lawsuits against end users, the program has generated attention and debate. We welcome that national conversation.

This was never a step we wanted to take, and we recognized that it would generate criticism in some quarters. It's tough love--for the first time, despite years of educational efforts and the availability of plentiful legal alternatives, we are holding people personally and financially accountable for the theft of creative works.

But the backdrop was a community hemorrhaging jobs, careers and investment in new music, amid a pervasive culture of looting in which there was little understanding of the law or the negative consequences of breaking it.

What have our antipiracy efforts yielded? A legal marketplace that is far better because of what we've done.

The process of bringing lawsuits has changed slightly since the program's inception, but one constant has been the process of identifying people who are stealing music online.

When we target an infringer, we do not know who that person is or any demographic information about the computer user. We know the songs that are being illegally "shared" (with millions of anonymous people) and the time and date of that copyright violation, nothing more. We do not have the ability to screen defendants based on their perceived sympathy or anything else.

No doubt, if we selectively enforced our rights against those deemed less sympathetic, the fringe copyright critics would call us arbitrary and capricious. We target theft. Period.

What have our antipiracy efforts yielded? A legal marketplace that is far better because of what we've done: Digital revenues doubled as a percentage of the market in 2006, from 8 percent in 2005 to more than 16 percent. An illegal marketplace which, prior to the initiation of our deterrence program, experienced exponential illicit P2P use has now mostly stabilized--the average number of households downloading music illegally on a monthly basis was roughly 7 million in 2003 and is now 7.8 million. Compare that with the growth in broadband access to the Internet, which grew from 38 million home users in 2003 to at least 80 million today.

Can there be any doubt that a whole lot more of those broadband subscribers would be illegally downloading but for the lawsuits? Surveys confirm that fact: People who have stopped illegal downloading cite the fear of being sued as the first or second reason for changing their behavior. And, lastly, there is a fundamentally different understanding of what you can and can't do on the Internet--37 percent of those surveyed in 2003 thought it was illegal to distribute music for free over the Internet; now that number has grown to 73 percent.

Think about it. What would the online music world look like had we done nothing? It's not a pretty picture: skyrocketing illegal peer-to-peer downloading without even a second thought about its legality or morality, and a small handful of legitimate businesses struggling to gain traction in a marketplace overwhelmingly dominated by piracy.

Four years into this program, the first trial of our end-user lawsuits finally happened. The fact that it took so long speaks to the clarity of the law and the clarity of the courts' various rulings on our legal program. Even the Supreme Court called illegal downloading "garden-variety theft."

Some defense lawyers, with an ax to grind and an agenda to advance, have posited a variety of bizarre legal theories about our cases. Yes, there have been a handful of procedural motions where the courts have asked us to proceed in a different manner.

But the underlying facts and the overwhelming court affirmations are irrefutable. The legal process we follow has been consistently upheld. And creative counterclaims on such theories as invasion of privacy, trespass and intentional infliction of emotional distress have been regularly dismissed by courts as improper.

Which brings us to the case of Ms. Thomas. Let's be clear. We did not choose Ms. Thomas to be the defendant in the first end-user lawsuit to go to trial. We repeatedly extended a generous settlement offer, a tiny fraction of which a jury later imposed upon her, but for whatever reason, Ms. Thomas turned us down. She and her lawyer chose this fight, not us.

That said, we will not--and cannot--hesitate to defend our rights. What's the alternative? Are we supposed to say "never mind" and concede the rights of artists, songwriters, producers, publishers and labels every time a defendant who may be sympathetic to some refuses to accept responsibility? What kind of deterrence message would that send?

A jury of Ms. Thomas' peers--12 ordinary Americans from the defendant's home state--found her liable for copyright theft. In fact, some wanted to assign even a harsher penalty, according to news reports. We purposefully did not ask for any specific amount in damages. We asked the jury to decide what was appropriate--and after carefully reviewing all the evidence, they determined that $222,000 was the appropriate amount.

None of this, though, is about being in court or winning monetary judgments. We would rather be in the record studios helping artists make great music that we can distribute in lots of exciting new ways that music fans want. Because that's what this program is ultimately about--creating a marketplace that rewards investment in creativity and compensates those who make the best music in the world.