RIAA's Pyrrhic Victory

It's just about impossible to imagine a worse public relations campaign than the one being waged by the Recording Industry Association of America (RIAA) in the nation's courtrooms.

One of the first victories scored against 261 alleged music pirates was a quick settlement by 12-year-old Brianna LaHara, an honor student who lives with her 9-year-old brother and single mother in a New York housing project. Brianna's mom, Sylvia Torres, testified that she had assumed that her daughter's paid subscription to the KaZaA service made her downloading perfectly legal.

On September 9, that assumption cost the nursing supervisor $2000 in fines, and cost Brianna a public apology for having downloaded songs like "If You're Happy and You Know It" and the theme to the television show Family Matters. A statement issued by the RIAA quoted Brianna as saying, "I am sorry for what I have done . . . I love music and don't want to hurt the artists I love." Prior to the settlement, she told reporters from the New York Daily News that her stomach was "all in knots."

A Washington, DC–based Internet music service trade association known as "P2P United" reportedly volunteered to pay the fines, relieving Ms. Torres of what would have been an immense financial burden and somewhat mitigating a sour public reaction to the RIAA's draconian legal tactics. An RIAA spokesman told the Los Angeles Times that the payment by P2P United was appropriate considering that "it was their members who induced her infringement in the first place." Adam Eisgrau, executive director of P2P United, stated, "Brianna and her mother shouldn't have to pay the price of the recording industry's consistent unwillingness to embrace new technology."

Despite the potential for damaging its already tarnished image, the RIAA went forth with the Brianna case to make its point for zero tolerance of downloading. Damage control will be nearly impossible. Litigation against children isn't popular even among the most ardent copyright supporters. "If you go after too many 12-year-old girls, you can alienate a lot of people," analyst Mike McGuire told the LA Times. Market researcher Phil Leigh commented that the RIAA settled quickly "to get her out of the headlines . . . . They don't want to be seen picking on children. She's not even a teenager."

The music industry is also going after folks at the other end of the age spectrum. On September 10, BBC News reported that Durwood Pickle, a 71-year-old Texas grandfather, was also caught in the RIAA's crosshairs—the result, he claims, of visits by his teenage grandchildren, who used his computer while they were at his home. Mr. Pickle told reporters he didn't understand why he was being targeted for something he hadn't done.

Defendants like Brianna LaHara and Durwood Pickle are exactly the sort of people that Senator Norman Coleman (R-MN) had hoped to protect with his inquiries into the RIAA's antipiracy campaign. "Someone has to take responsibility," responded RIAA president and general counsel Cary Sherman to accusations of heavy-handedness in the effort to contain the downloading epidemic. The RIAA's new CEO, Mitch Bainwol, reiterated that sentiment, saying his organization's goal was "to send a strong message that illegal distribution of copyrighted music has consequences."

Two unlikely consequences of the lawsuit blitz are resurgence in retail music sales and a decline in the popularity of downloading. A September 11 news analysis by the BBC claims that the RIAA's efforts to scare people away from peer-to-peer file sharing simply aren't working. Eric Garland, a spokesman for BigChampagne, a research firm that monitors peer-to-peer network activity, told the BBC that use of the Fast Track network, used by both Grokster and KaZaA, had increased following the avalanche of subpoenas launched by the RIAA in August. "There's no mass exodus, that's safe to say. Ironically, usage this week and this month is up," Garland stated.

Music fans aren't daunted by the RIAA, and some are beginning to fight back. Shortly after the Brianna LaHara case was settled, a Northern California man initiated his own countersuit against the music industry. On September 10, Eric Parke filed suit in Marin County Superior Court in San Rafael. In his suit, Parke seeks an injunction against the RIAA's "Clean Slate" amnesty program, and accuses the trade group of deceptive business practices in persuading consumers that recanting their file-sharing ways will protect them from future lawsuits. Clean Slate is a "misleading attempt to obtain admissions of copyright violations by individuals without giving individuals any meaningful benefit in return or any binding amnesty from suit," Parke told the San Francisco Chronicle. The 37-year-old mortgage broker told reporter Benny Evangelista that he had never downloaded, but initiated his suit out of conviction that "somebody had to stand up to the RIAA."