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Why file swapping tide is turning

RIAA President Cary Sherman tells CNET that the aggressive pursuit of Internet file swappers will slow the pace of unauthorized online downloads of copyrighted music.

The Recording Industry Association of America sent ripples of fear, confusion and anger across the digital landscape last week when it sued 261 ordinary computer users for illegal file swapping.

Many of those targeted said they didn't know file sharing was illegal, or said they didn't even know their children were using the family computer to run Kazaa.

Record companies had held individual lawsuits in abeyance for months or even years, worried about just the kind of headlines that splashed across New York papers last week, spotlighting the case of Brianna Lahara, the 12-year-old public housing resident who was the target of one of the suits.

The result has been calls for boycotts of CDs, a lawsuit filed against the RIAA and intense public discussion about the legal dangers of trading copyrighted music online. And that's what turns something many see as a public relations disaster into a long-term success, RIAA leaders say.

The new chief executive of the RIAA, crack Republican political strategist Mitch Bainwol, has kept out of the limelight on the issue so far, holding himself to a few terse prepared statements. But CNET spoke with RIAA President Cary Sherman, the man who led the group's legal battles against Napster, Kazaa and the rest of the file-swapping world for years, about backlash and future plans.

Q: The lawsuits have been out there a week. What's your take on how things are going?
A: I think the message is getting out. The amount of media coverage was truly phenomenal, and I think the best news is that we have inspired extraordinary amounts of discussion between parents and kids and among adults about what is moral, as well as legal behavior on the Internet. Considering that just a short while ago this practice was simply taken for granted without anyone even thinking twice about what they were doing, I think that's a phenomenal change in a short period of time, and we're very pleased about that.

We knew that this was not going to be a good PR experience from the get-go.
Were you surprised at the number of people who said, "Wow, we didn't know this was illegal?"
The problem is that you're always going to get that defense, whether it's accurate or not. It's the exceptional defendant who will say, "You're right, I knew what I was doing was illegal." Therefore you have to try and figure out whether these are truthful responses. But it's the kind of thing that can be taken into account when working out settlements, and we will act accordingly.

Clearly, record companies and the RIAA had some concerns about backlash before going into this. Certainly the story about the 12-year-old in public housing who was sued hit the headlines fast and hard. Are you at all concerned about public relations backlash?
We knew that this was not going to be a good PR experience from the get-go. But the (record) companies were of the view that this was something we had to do without regard to the PR implications. If PR were the dominant consideration, we would not have taken these actions, and the problem would be continuing unabated, and people would not be thinking twice about the legality of what they're doing. If bad PR is the price, it's a relatively small one compared to the size of the problem.

Why didn't you investigate the people you were suing beforehand? What was the calculus in essentially going in blind?
There were several reasons. First, if your message is deterrence, you want people to understand that they face a risk of being a defendant in a lawsuit regardless of who they are. You don't want a kid to think he can get away with this just because he's a kid, or that an octogenarian can get away with it because he's in his 80s. You need to be applying the law indiscriminately to whoever comes within the range of activity that is being targeted.

Second, I think that the privacy implications of investigating your targets would be even worse than suing without knowing who the target is. What would people think if we had stakeouts or were combing through private records to determine who it is who was a possible defendant? And what kind of message would that send about our deterrence program? It would basically establish that this is a cynical program that is designed to avoid suing the wrong people, like a senator's daughter. We've really made very clear that it doesn't matter who you are and that's why you don't do investigation.

What has been the response from Washington?
The response from Washington has been quite supportive. We've had a number of senators and congressmen speaking out that this has been the right thing to do, (saying) "We gave you copyright laws; it's up to you to enforce them." There have been some who have had questions about the program, but our responses have--I think--been quite satisfying in many ways. It doesn't mean that we won't have a lot of questions to respond to in the future. But so far, I think the people who have looked carefully at what we are doing think we have been doing it cautiously, prudently and responsibly.

One of the issues last week in Washington was pornography on peer-to-peer networks. That's tangential to the music issue, but you've still raised it. What would you ultimately like to see in terms of regulation of peer-to-peer software?
I'm not sure we have any great ideas on regulation of peer-to-peer software. But we do think that parents should know about all the dangers of peer-to-peer software, so this isn't viewed as simply a copyright infringement issues.

A lot of parents have suddenly been asking their kids whether they're downloading music because they're suddenly concerned about exposure to damages. They should also be talking to their kids because the kids may be seeing pornography that the parent doesn't want them to see, or that the kid even intended to see. They should be talking to them about the fact that their hard drive may be open to the rest of the world to browse through because the kid didn't know how to set up a shared folder properly and the parents' tax returns, credit card information, medical records, resumes and other private information is being shared on a public network. A lot of viruses are spread though peer-to-peer networks, and I would think parents would want to know about that.

The best defense here is to simply stop distributing music files or quit sharing them online, and then you won't have to worry about being a target for litigation.
The amnesty program offered by the RIAA has met with some approval from people who are worried about this, and a fair amount of criticism from RIAA critics. Have you had anyone respond to it yet?
I actually don't know. We've been getting a lot of calls. We advised people to consult with an attorney, and hopefully they're doing that. Forms have to be notarized before they are sent in, so it will take some time before we know how many people participate.

But the point of this program was not to suggest that this was a panacea in any way. We got calls when the information subpoenas started going out from people who wanted some comfort of knowing they would not be the target of a lawsuit. We wanted to provide some mechanism to give people some comfort. Really the best defense here is to simply stop distributing music files or quit sharing them online and then you won't have to worry about being a target for litigation.

What is the process from here on out? You've got well over 1,500 subpoenas, and only 261 lawsuits. Do you expect the difference to be made up in lawsuits? Are you evaluating the response to the first round with an eye to any changes?
We'll be filing another round of lawsuits next month. The idea is to keep the lawsuits coming in order to reinforce the message that we are serious about changing people's behavior, and that they should not engage in the illegal activity. If people thought this was a one-time thing, the deterrent impact would be lost. So we feel like we have to go forward with additional lawsuits, and we intend to do so.

It may be too early to really see an effect, but what is your sense for the direct effect at this point. Are you watching file-swapping networks or reading message boards? Are you seeing any effect inside the communities of file swappers themselves?
I don't think this is the kind of thing that is capable of measurement in the short term. Or, to be more accurate, one could look at measurements, but it wouldn't necessarily reflect the long-term impact. We're looking at changing a cultural paradigm here, making people think twice about downloading copyrighted works on the Internet, understanding that they're not anonymous, understanding that there can be consequences. All of those things are part of a very broad effort to try and create legitimate e-commerce on the Internet for music, and for all other copyrighted works.

These kinds of things take a very long time. Think of how long it took to change people's attitudes toward smoking. We may be dealing with something similar here. I don't know.

Will there be lawsuits from you and other copyright holders until that culture is changed?
I have no idea.

We've had one criminal case filed against a person who was part of an underground music distribution network. Is it important that criminal charges ultimately be brought to bear against the kind of ordinary file swappers who were the target of civil lawsuits?

Civil liability is ultimately enough to get your message across?
I think that there would always be more civil lawsuits than criminal lawsuits in any event. So since file sharers are already calculating how great their risk is given the number of file sharers versus the number of lawsuits, I think civil lawsuits are--in the long term--going to play a more visible role.

Having said that, criminal prosecutions for online piracy of all forms are helpful in getting the message out that illegal behavior on the Internet is not going to be acceptable.