||Miércoles 23 de Mayo de 2007, Ip nº 192
|Downloaders face the music as record industry sues
Por Levi Pulkkinen
Putting a price on art isn't easy. But $750 for one copy of Duran Duran's "Girls on Film" might be a bit much.
Downloaded files of Christina Aguilera's "What a Girl Wants" and 10 other tunes cost Sisouda Soysouvanh of Seattle $8,250. The Dolencs of Sammamish were hit for $7,500 after being accused of stealing music.
After big wins against online music-sharing networks, recording industry leaders are now turning their copyright infringement fight toward individual residents.
Relying on deep pockets and prying into personal computers for evidence, the companies compel people to pay thousands in fines without ever presenting a case at trial.
Many of the lawsuits are filed against people who can't afford a long legal battle, and most people settle without a fight.
In the past four years, the industry's leading companies have sued dozens of Western Washington residents for downloading copyright-protected songs.
Everett resident Mark Roy thought the letter accusing him of lifting MC Hammer's "U Can't Touch This," along with other songs, was a joke.
The letter emphasized the statutory maximum fine -- $30,000 per illegal file, though the companies usually ask for much less in court. On average last year, Western Washington residents sued by the record companies paid $4,924 for their illegally obtained playlists.
Recording industry representatives say the corporations are only exercising their legal right to protect against theft. But the industry threats have drawn complaints that the companies are using the expense and complexity of the federal court system to bully people.
"Copyright infringement is wrong, but abuse of innocent people is wrong too," said Lory Lybeck, a Mercer Island attorney who has several clients accused of copyright infringement. "There's a predominance of (these lawsuits) filed against people who simply can't participate in the federal legal system."
Priced out of legal system
Illicit online music sharing, known as peer-to-peer exchange, was on the rise in 2003 when the recording industry started its litigation initiative. Since then, the number of U.S. households where music is downloaded illegally has remained static at about 7 million, according to the Recording Industry Association of America, the leading recording industry trade group.
As music downloaders -- or, in the RIAA's parlance, "songlifters" -- continued to take a toll on industry revenue, record corporations sought help from the courts.
The four major players in the recording industry -- EMI Music, Sony BMG Music Entertainment, Universal Music Group and Warner Music Group -- have threatened to sue at least 20,000 Americans, according to industry statistics.
"Litigation was not our first choice," RIAA spokeswoman Jenni Engebretsen said. "But what we found several years ago was that education alone was not enough."
RIAA members also have gone after several peer-to-peer networks that facilitate music sharing. That litigation gained the industry a coup in 2005, when the U.S. Supreme Court ruled unanimously that now-defunct provider Grokster Ltd. violated the law.
Since 2003, RIAA members have brought at least 55 lawsuits against Western Washington residents, according to a Seattle P-I analysis of U.S. District Court filings. Dozens of other residents settled with the recording industry before a lawsuit was filed.
In about 47 percent of those lawsuits, record companies won by default judgment after the other party failed to respond. In cases filed last year, those judgments carried an average fine of about $6,100.
Susan Kosenski of University Park said she had to beg her bank for a loan to pay a $5,000 settlement with several record companies. She said the industry threatened her with thousands more in fines.
"I thought, how come I'm getting nailed?" Kosenski said, whose teenage son had been downloading music. "Do you mean to tell me that music companies don't have a lot of money?"
Kosenski said legal papers with which she was served included a list of dozens of songs her son had stored on the family computer.
"It said in the papers that they'd charge you, like, $750 per file," Kosenski said. "I looked on this legal paper, and I'll tell you what -- there were an awful lot of files on there."
Roy said attorneys with whom he talked said he could win the case even though his children had been downloading music. But because of the costs of litigation, Roy said he decided to take the $5,000 settlement offer.
That cost prices many Americans out of the legal system, said professor Jane Winn, co-director of the University of Washington's Shidler Center for Law, Commerce and Technology.
When it comes to legal services, Winn said, the richest Americans -- those in the top 20 percent when it comes to wealth -- can afford help. Those in the poorest 10 percent are often eligible to receive legal aid. But those in the middle 70 percent get left out in the cold.
'A black science'
According to RIAA statements, most of the legal actions start with an online investigation.
The recording industry and its cybersleuths have been tight-lipped about what techniques are used in their investigations, Lybeck said.
"It's still a black science, and they like to keep it that way," he added.
According to court documents, investigators scan personal computers through an access point provided in most file-sharing programs. Although access can be blocked, many computer users don't know the hole exists.
When copyrighted works are found, investigators note the offender's Internet Protocol address -- an identification number assigned to a computer or router by an Internet service provider.
Nicole Pearson of online investigator MediaSentry Services declined to discuss the details of the company's operations. But she did say that investigators use the same access points available to anyone.
"We do not do anything that violates anyone's privacy," Pearson said.
File-sharing programs also open a door to the entire hard drive on a computer to hackers. That means identity thieves, who also are in cyberspace, can copy personal documents, said Howard Schmidt, a computer security expert.
Schmidt, who helped craft a national cybersecurity initiative after Sept. 11, said downloaders shouldn't expect any privacy online.
"They're knowingly opening their systems up," Schmidt said. "They're broadcasting it all over the Internet."
Perils for wireless users
Once record company investigators have an IP address, corporate attorneys subpoena customer records from Internet providers.
At best, Lybeck said, an IP address only identifies the individual paying the Internet service bill -- not the one using the computer. For customers with an unprotected wireless hub, that means they could be on the hook for songs downloaded by a neighbor.
Lybeck also contends that identifying information gleaned through IP addresses is unreliable. He said he has at least one client who proves it.
Tanya Andersen hired Lybeck to defend her against claims that she illegally downloaded about 1,400 songs. Much of it was gangster rap with what Andersen, a former Justice Department caseworker, described as having "filthy-sounding names."
Andersen said she couldn't believe it when she received a settlement demand in December 2004. "At first, I thought it was somebody trying to scam me," said Andersen, speaking from her Portland home. "I said, 'I've never done this.' "
She'd briefly had the file-sharing program Kazaa on her computer, but she deleted it without using it. Her daughter, 7 at the time, isn't a likely suspect, either.
The record companies have continued their suit against her even after they searched her computer and didn't find the stolen music. She has filed a counterclaim, accusing the companies of invading her privacy and abuse of the legal system.
"In the United States, it's totally unbelievable that somebody can get away with doing this to somebody," Andersen said. "We're supposed to be a good country, where people are free. ... To me, it feels like they conduct themselves like a mafia would."
BY THE NUMBERS
7 million: Number of households estimated by the recording industry to have illegally downloaded music.
20,000: Number of Americans threatened with suits by four major record companies.
$30,000: Maximum fine allowed by law per illegal file.
$4,924: Average paid in settlements by Western Washington residents to record companies.
$6,100: Average fine against those who failed to respond to companies.
|| 13/05/2007. Seattle Post - Intelligencer.