The Recording Industry Association of America (RIAA), eager to battle peer-to-peer (P2P) music filesharing in light of flagging CD sales, has advocated copyright infringement lawsuits against a new criminal elite that includes grandmothers, college students, and children. However, the media’s focus on the funky demographics of these cases--big bad trade association versus innocent schoolgirls downloading “Toxic”--gives short shrift to a disturbing reality: even when alleged media pirates fight the law and win, they still lose.
“You are going to spend ten times the amount of money you were going to pay [recording industry plaintiffs] on attorney’s fees,” says John Hermann, a Michigan attorney who has defended a number of clients in P2P cases. “This is a publicity stunt.”
Earlier this year, Hermann served as co-counsel to Candy Chan, who was sued by no fewer than seven record labels—a litigious Voltron formed by Priority, Elektra, Motown, Warner Brothers, Sony, UMG, and Arista--because an email address linked to her name was used in P2P music distribution. According to Hermann, the RIAA found Chan through data mining, a process by which subcontracting companies pose as filesharers and get IP addresses of P2P participants. Users can then be subpoenaed thanks to the information supplied by that research.
“This is fishing for IP addresses,” says Hermann, who likens the process to a “collections scheme.” He says that, after being identified, his client received a letter from a California law firm indicating that she was involved in copyright infringement. Court documents attest that Chan contacted a label representative and was told she owed “several hundred thousand dollars for her infringing activities, but [was] offered a one-time only settlement of ,000.00.”
In a deposition, Chan made it clear that she was not music-swapping, but that her 13-year old daughter Brittany may have used the email address for that purpose. In Michigan, parents can be held liable for damage done to property up to 00. Hermann’s defense was grounded in his belief that filesharing does not constitute damage within this law.
“Copyright infringement is not the type of liability envisioned under the statute,” he says. “The parent is not liable unless they are involved or materially participate. In many of these cases, all the parent did was buy the computer and get the account.” All parties agreed that Chan, who runs a Chinese restaurant with her husband, was not looking for another career as an mp3-J. “[Candy Chan] did not know the first thing about computers,” Hermann insists.
When Brittany was linked to the email address, plaintiffs sought to add her to as a defendant, but the court indicated Brittany could not be enjoined to the suit unless her mother was released from it. Under the threat of a motion for summary judgment—a legal request that could result in the case’s dismissal, and in liability for Candy Chan’s legal fees—the labels voluntary released Chan from the lawsuit, ending her legal problems, but leaving her owing her attorneys tens of thousands of dollars.
“I am happy with the result in that it is consistent with my reading of the law,” says
Hermann. However, he insists that Chan was only released from the case because the plaintiffs did not want to pay her legal bills. “This is about the bigger picture….[The RIAA and the industry] must hang someone out to dry.”
And with the elder Chan’s case dismissed, that someone maybe the now-15-year-old Brittany, who has now been sued by the recording industry. For her part, Candy Chan, insists that she is not computer literate and calls the case "a bunch of bull."
Chan says that Brittany did not know she was sharing files, and points out that any downloading or sharing could have been done by one of her daughter's friends. "They need to go after bigger guys selling [downloaded music], not just kids using it for their own purposes," she says.
Though it holds no copyrights and is never listed as a plaintiff, the RIAA— both an advocate for the industry and a private police force investigating piracy and royalty payment issues—continues to steer the course of litigation. “The RIAA is controlling what attorneys to use, what strategy to use, and the amount of aggression, but does not appear on court documents,” he said.
Attorneys for plaintiffs in the Candy Chan case would not comment for this story and the RIAA did not return calls.
To read the mother's full deposition please go to: www.econoculture.com