As NewScientist reported yesterday, a new study has revealed something interesting about copyright infringement on the Internet: “Anyone who has downloaded pirated music, video or ebooks using a BitTorrent client has probably had their IP address logged by copyright-enforcement authorities within 3 hours of doing so.” The computer science researchers were able to show, perhaps unsurprisingly in retrospect, that there are numerous monitoring services out there that maintain a close watch on all of the major Bittorrent services, joining the torrent swarm just to watch what other IPs join in.
Just two or three years ago, this would have set off a cacophony of alarm bells, as students and twenty-somethings everywhere waited in terror for a lawsuit to arrive in the mail. But the music (RIAA) and movie (MPAA) industries have both been quiet on that front for some time, having realized something that we trial lawyers have known for decades: merely filing lawsuits doesn’t accomplish much, you have to win and collect on them. So who is collecting the data, and what’s it for?
The first possible answer is likely the nefarious “six strikes” program, the new frontier for the RIAA and MPAA. Having given up on the courts, the big companies have turned to what they know best: lobbying the government and colluding with other big companies. The “six strikes” program, technically the “Copyright Alert System,” involves all the major ISPs — AT&T, Cablevision, Comcast, Verizon and Time Warner Cable — agreeing to act as hitmen for unproven allegations from the RIAA and MPAA, taking action up to and including denying Internet access for customers accused of copyright infringement and haven’t paid the troll. (The folks over at Info/Law have already filed suit to figure out the Obama Administration’s role in that deal.) The “six strikes” program is supposed to go into effect soon, and there’s good odds that many of the monitoring services recently discovered by the researchers are gathering as many IPs as they possibly can so that, as soon as it starts up, everybody and their grandmother can receive a threatening notice from their ISP.
The second possible answer is the porn industry. While the RIAA and the MPAA may have given up on lawsuits, the porn industry has fallen in love with them, as have a number of lawyers. Like many bloggers, I am ambivalent about copyright: as a content creator myself, I certainly agree that content creators should have enforceable legal rights, but, as a consumer, I am disturbed by settlement demands and judgments valuing pirated movies and MP3s for thousands, sometimes even hundreds of thousands, of dollars. As I wrote more than a year ago, I think the most obvious flaw of our copyright system is the fact that copyright infringement, virtually alone among causes of action, entitles a plaintiff to the presumption that they have suffered massive damages. (That’s certainly not the only flaw, consider, for example, why the market for streaming movies is so awful.)
To put it another way, if you are paralyzed in a car accident or if your spouse dies in a fire, the law presumes that you’ve suffered no damage, and the burden is on you to prove your entitlement to compensation; if, instead, a porn company files a lawsuit against a couple dozen people who shared one of their movies on Bittorrent, the law presumes that the company has suffered somewhere between $750 and $150,000 in damages from each person involved. It ain’t right.
The porn industry takes that already-flawed calculus and adds the all-important factors of embarrassment and social stigma. A pro se college student or a barista has, in many ways, little to lose by dragging their feet in defense of a lawsuit brought by Metallica, so that natural way in which lawyers’ fees and court costs turns every case into war of attrition starts to work against the copyright holder, making the lawsuit cost more than it’s actually worth. With porn, the calculation is flipped on its head: the accused has considerable incentive to settle before allegations involving a movie with, ahem, a highly descriptive title become public. Compounding the problem, a number of porn movie copyright holders have engaged in unusually sleazy litigation conduct, as Fight Copyright Trolls and Die Troll Die have profiled, prompting a string of really unhappy judges busting up the theories of their cases and sanctioning their lawyers for improperly serving subpoenas.
But, so long as there are people quickly willing to settle porn cases for the $2,000 to $4,000 often demanded — and, unlike the movie and music cases, it seems like there are — it seems the porn companies and their lawyers, including lawyers from law firms of surprising pedigree, just consider it a cost of doing business, and they’ll keep rolling along until they can’t anymore.
All of which raises a much larger question. Which do we, as consumers, prefer: the big ISPs, big content companies, and both the Executive Branch and Congress conspiring to allow our rights to be decided outside the judicial system, or the porn companies suing every IP number they can get their hands on?
The ISPs have been surprisingly protective of users accused of downloading porn, but it may be that there’s a much more cynical process at work: it may be that the ISPs want to move copyright infringement claims away from the messy and public court system and into the secretive “Copyright Alert System” world in which users’ rights are totally meaningless. So what if you could, in theory, sue your ISP for kicking you off the Internet based on nothing more than a mere allegation of infringement? For all the same reasons that it makes no sense for copyright holders to try to chase down individual consumers, It makes no more sense for a user to sue over an ISP wrongfully turning off their internet: the economic damages simply aren’t large enough to justify the lawsuit.
Thus, it might be more than just a touch of hypocrisy here in which, if the RIAA or MPAA alleges copyright infringement, it’s taken as gospel, but if a porn companies does, suddenly the ISP is the guardian of internet liberty — it may be a sign of the new way in which big content companies get around the due process of law. There are other options available; in addition to making the statutory damages provisions match reality, as I mentioned two years ago, we could send minor copyright infringement claims into an administrative process, the same way we do with many other types of commonplace litigation, like workers’ compensation, unemployment, social security, and employment discrimination. That would both give content creators an accessible forum for legitimate claims and protect individuals against dubious claims filed jointly against dozens, sometimes hundreds, of disparate plaintiffs, as the Bittorrent cases often are.