Comments on: RIAA litigation strategy and norms http://madisonian.net/2006/02/26/riaa-litigation-strategy-and-norms/ a blog about law, tech, culture, and related things Thu, 10 May 2012 20:32:56 -0500 http://wordpress.org/?v=2.8.4 hourly 1 By: Israel Rivers http://madisonian.net/2006/02/26/riaa-litigation-strategy-and-norms/comment-page-1/#comment-108103 Israel Rivers Thu, 07 Dec 2006 04:05:27 +0000 http://madisonian.net/?p=561#comment-108103 Are there any numbers out there (or at least guesstimates) showing how much money the RIAA has gained in settlements and how much they have spent on litigation? Are there any numbers out there (or at least guesstimates) showing how much money the RIAA has gained in settlements and how much they have spent on litigation?

]]> By: Matthew Sag http://madisonian.net/2006/02/26/riaa-litigation-strategy-and-norms/comment-page-1/#comment-21187 Matthew Sag Wed, 01 Mar 2006 15:15:09 +0000 http://madisonian.net/?p=561#comment-21187 First let me say thanks to Brett Frischmann for his many insightful comments on my paper (to be posted on ssrn soon (http://ssrn.com/author=461043)) at the 1st Annual Northwestern Journal of Technology and Intellectual Property Symposium: IP Litigation in the 21st Century. I thought I would make a few quick points in response to Mark Schultz’s post: I don’t think that anyone thinks that a pure deterrence strategy is likely to change consumer behavior. A more complete understanding of the social policy and recording industry strategy with respect to file sharing requires understanding 3 things, (i) the value of deterrence, (ii) the interaction between deterrence and social norms, and (iii) the effect of non-deterrence on social norms. (I should probably say at least 3 things). Mark is right; the social norms implications of the recording industry’s end user litigation strategy need to be considered. Nonetheless, the implications of social norms are possibly being over-hyped by those who are unsympathetic to the RIAA. Mark’s paper (http://papers.ssrn.com/sol3/papers.cfm?abstract_id=805945) is a very useful contribution in this regard because he goes beyond “backlash, backlash, backlash” and actually makes a positive contribution. Mark suggests that the recording industry can develop pro-copyright social norms by understanding the basic human impulse of reciprocity and that the norms of the jamband community provide evidence of this. I agree with Mark that the wrong kind of enforcement may be harmful. I am now working on a separate paper which makes the case for a low sanction, high probability regime for unauthorized p2p file sharing. Borrowing some from work on the “war on drugs” I suggest that we need to decriminalize file sharing but at the same time give the recording industry much more powerful tools of enforcement. I view file sharing the way I view driving 70 in a 60 zone on the highway. It is not morally or ethically wrong, but there is good case for some kind of government regulation. We don’t throw you in jail the first time you get caught speeding, we slap you with a $300 fine and tell you not to do it again. Speeding tickets don’t provoke that much moral outrage, and they seem to be effective in curbing behavior. This paper is still embryonic and I welcome comments on the basic idea and suggestions for further research. My proposal is different to Lemley and Reese in that they suggest an administrative dispute resolution model for high volume up-loaders, I am thinking more along the lines of a rebuttable presumption of civil liability for any amount of file sharing. If the fines are set low enough, this proposal starts to merge with some of the liability rule proposals (e.g. Fisher). A couple of minor points: (1) Mark says “it does not appear that the RIAA litigation is building support for copyright–either in terms of public opinion or actions.” While it’s true that consumers have not started plastering their walls with “I love the RIAA” posters, the Pew Internet and American Life Surveys do indicate that attitudes to file sharing are changing. I think iTunes etc deserves as much of the credit as litigation, but these are complementary strategies. (2) Mark and I both refer to the “conventional wisdom” about file sharing in our papers, but we mean two very different things. Maybe we both need to consider whether this label is more of a rhetorical device than it is a useful description. First let me say thanks to Brett Frischmann for his many insightful comments on my paper (to be posted on ssrn soon (http://ssrn.com/author=461043)) at the 1st Annual Northwestern Journal of Technology and Intellectual Property Symposium: IP Litigation in the 21st Century.
I thought I would make a few quick points in response to Mark Schultz’s post:
I don’t think that anyone thinks that a pure deterrence strategy is likely to change consumer behavior. A more complete understanding of the social policy and recording industry strategy with respect to file sharing requires understanding 3 things, (i) the value of deterrence, (ii) the interaction between deterrence and social norms, and (iii) the effect of non-deterrence on social norms. (I should probably say at least 3 things).
Mark is right; the social norms implications of the recording industry’s end user litigation strategy need to be considered. Nonetheless, the implications of social norms are possibly being over-hyped by those who are unsympathetic to the RIAA. Mark’s paper (http://papers.ssrn.com/sol3/papers.cfm?abstract_id=805945) is a very useful contribution in this regard because he goes beyond “backlash, backlash, backlash” and actually makes a positive contribution. Mark suggests that the recording industry can develop pro-copyright social norms by understanding the basic human impulse of reciprocity and that the norms of the jamband community provide evidence of this.
I agree with Mark that the wrong kind of enforcement may be harmful. I am now working on a separate paper which makes the case for a low sanction, high probability regime for unauthorized p2p file sharing. Borrowing some from work on the “war on drugs” I suggest that we need to decriminalize file sharing but at the same time give the recording industry much more powerful tools of enforcement.
I view file sharing the way I view driving 70 in a 60 zone on the highway. It is not morally or ethically wrong, but there is good case for some kind of government regulation. We don’t throw you in jail the first time you get caught speeding, we slap you with a $300 fine and tell you not to do it again. Speeding tickets don’t provoke that much moral outrage, and they seem to be effective in curbing behavior.
This paper is still embryonic and I welcome comments on the basic idea and suggestions for further research.
My proposal is different to Lemley and Reese in that they suggest an administrative dispute resolution model for high volume up-loaders, I am thinking more along the lines of a rebuttable presumption of civil liability for any amount of file sharing. If the fines are set low enough, this proposal starts to merge with some of the liability rule proposals (e.g. Fisher).
A couple of minor points:
(1) Mark says “it does not appear that the RIAA litigation is building support for copyright–either in terms of public opinion or actions.” While it’s true that consumers have not started plastering their walls with “I love the RIAA” posters, the Pew Internet and American Life Surveys do indicate that attitudes to file sharing are changing. I think iTunes etc deserves as much of the credit as litigation, but these are complementary strategies.
(2) Mark and I both refer to the “conventional wisdom” about file sharing in our papers, but we mean two very different things. Maybe we both need to consider whether this label is more of a rhetorical device than it is a useful description.

]]> By: Mark Schultz http://madisonian.net/2006/02/26/riaa-litigation-strategy-and-norms/comment-page-1/#comment-21166 Mark Schultz Mon, 27 Feb 2006 15:52:58 +0000 http://madisonian.net/?p=561#comment-21166 Brett, thanks for touting my paper yet again. It will be out later this Spring--I'm finishing up final edits on it right now. I'll have to get in touch with Matt, as his paper sounds interesting. A few thoughts. First, two on the RIAA as an organization, then a few about the effect of the RIAA's enforcement strategy on copynorms overall. (1) If cost benefit analysis is confined to monetary cost -vs- monetary gain, the RIAA suits are a goldmine. Thanks to statutory damages and the fact that most targets appear to fold, the RIAA can extract settlements far in excess of litigation costs. (2) These suits work well for the RIAA as an organization. If the RIAA proceeded to lecture the music industry about treating its customers better, creating better product, and experimenting with new business models, its leadership would be fired quickly. Who needs a trade association to do what pundits and professors are glad to do for free? The incentives for the RIAA are to do *something* for its members, and the somethings that trade associations do best are litigating and lobbying. (3) Some enforcement is necessary. If copyright owners want people to take copyright law as normatively serious, copyright owners need to enforce it. If copyright owners want people to believe that they are likely to be caught and punished if they infringe, however, they almost certainly need to devote a huge amount of resources to enforcement to generate this perception. Right now, getting caught infringing is extremely unlikely. Therefore, some enforcement is necessary to send the right message, but a pure deterrence strategy is unlikely to be a cost effective way to change behavior. (4) The wrong kind of enforcement may be harmful. While some enforcement is necessary, people's expectations need to be taken into account. Perceptions of unfairness in enforcement undermine support for the law. And, if enforcement diverges too much from the norm, people are more likely to resist complying with the law. As things stand, it does not appear that the RIAA litigation is building support for copyright--either in terms of public opinion or actions. (5) At the very least, the music industry ought to consider whether the RIAA has a conflict of interest. The RIAA's harsh rhetoric impresses its most vocal constituents and builds its lobbying case, but is it in the long run interest of the music industry? Right now, we hear the following: "The apocalypse is nigh; nobody is paying for music." If that's so, then why should I be the only sucker who does so? "Downloaders are pirate scum." Yeah, I love you too and will be delighted to pay for your product. Thanks for the free rootkit. A better, more balanced message might impress the public. "Millions are complying. So should you." "Those few who don't comply hurt artists and everybody else." "We hate to sue people who think they are our fans, but real fans don't download. Please stop. If you don't you'll get caught." The latter types of messages do get into the mix, but they are rarely the pull quote. Jack Valenti didn't get a 40 year career by sounding nice and conciliatory. Brett, thanks for touting my paper yet again. It will be out later this Spring–I’m finishing up final edits on it right now. I’ll have to get in touch with Matt, as his paper sounds interesting. A few thoughts. First, two on the RIAA as an organization, then a few about the effect of the RIAA’s enforcement strategy on copynorms overall.

(1) If cost benefit analysis is confined to monetary cost -vs- monetary gain, the RIAA suits are a goldmine. Thanks to statutory damages and the fact that most targets appear to fold, the RIAA can extract settlements far in excess of litigation costs.

(2) These suits work well for the RIAA as an organization. If the RIAA proceeded to lecture the music industry about treating its customers better, creating better product, and experimenting with new business models, its leadership would be fired quickly. Who needs a trade association to do what pundits and professors are glad to do for free? The incentives for the RIAA are to do *something* for its members, and the somethings that trade associations do best are litigating and lobbying.

(3) Some enforcement is necessary. If copyright owners want people to take copyright law as normatively serious, copyright owners need to enforce it. If copyright owners want people to believe that they are likely to be caught and punished if they infringe, however, they almost certainly need to devote a huge amount of resources to enforcement to generate this perception. Right now, getting caught infringing is extremely unlikely. Therefore, some enforcement is necessary to send the right message, but a pure deterrence strategy is unlikely to be a cost effective way to change behavior.

(4) The wrong kind of enforcement may be harmful. While some enforcement is necessary, people’s expectations need to be taken into account. Perceptions of unfairness in enforcement undermine support for the law. And, if enforcement diverges too much from the norm, people are more likely to resist complying with the law. As things stand, it does not appear that the RIAA litigation is building support for copyright–either in terms of public opinion or actions.

(5) At the very least, the music industry ought to consider whether the RIAA has a conflict of interest. The RIAA’s harsh rhetoric impresses its most vocal constituents and builds its lobbying case, but is it in the long run interest of the music industry? Right now, we hear the following: “The apocalypse is nigh; nobody is paying for music.” If that’s so, then why should I be the only sucker who does so? “Downloaders are pirate scum.” Yeah, I love you too and will be delighted to pay for your product. Thanks for the free rootkit.

A better, more balanced message might impress the public. “Millions are complying. So should you.” “Those few who don’t comply hurt artists and everybody else.” “We hate to sue people who think they are our fans, but real fans don’t download. Please stop. If you don’t you’ll get caught.”

The latter types of messages do get into the mix, but they are rarely the pull quote. Jack Valenti didn’t get a 40 year career by sounding nice and conciliatory.

]]>