Matthew Sag has convincingly argued that RIAA’s litigation war against downloaders is rational for the industry: it’s basically self-financing, as just about every defendant is too terrified of massive statutory damages to put up a fight. But the record industry’s declining fortunes may make its court victories Pyrrhic.
Moreover, a scorched earth litigation strategy against infringers is getting less viable as a few defendants fight back. For example, one litigant has found a creative way of subjecting RIAA’s tactics to public scrutiny:
Former RIAA defendant Tanya Andersen is now suing the major record labels and the RIAA for negligent and illegal investigation and prosecution. In a thirteen count civil suit filed in Oregon District Court, she alleges that record labels didn’t use properly licensed investigators and violated her privacy.
I’m still waiting for someone to bring the antitrust lawsuit that was forestalled by Bertelsmann’s purchase of Napster a few years ago. As Napster-slaying Judge Patel said of the RIAA’s distribution strategy then, “These ventures look bad, smell bad and sound bad” from an antitrust perspective.
Of course, given the lassitude of federal authorities, the antitrust case will be hard to make. But I look forward to more privacy challenges. As Sonia Katyal has argued,
recent developments in copyright law. . . have invited intellectual property owners to create extrajudicial systems of monitoring and enforcement that detect, deter, and control acts of consumer infringement. As a result, . . . intellectual property rights have been fundamentally altered—from a defensive shield into an offensively oriented type of weapon that can be used by intellectual property creators to record the activities of their consumers, and also to enforce particular standards of use and expression. . . .
If agencies fail to police these tactics, perhaps only individuals can fight for themselves. But as Bruce Scheier asks, why doesn’t the US have a privacy commissioner?
Hat Tip: BoingBoing.