Problem #2

WE WROTE YESTERDAY ABOUT the House and Senate anti-sharing bills, and we mentioned that they shed light on the legal weakness of the RIAA’s current lawsuit campaign. To get more specific, both laws establish criminal or civil penalties for “making available” a copyrighted work.

From CNET: “If the PDEA became law, prosecutors would not have to prove that $1,000 in copyrighted materials were downloaded–they would need only to show that those files had been publicly accessible in a shared folder.”

Why is that important? Because while it’s easy to see what someone has made available in their shared folder, it’s very difficult to prove that any given files have been downloaded– statistically speaking it’s impossible. We’re not lawyers and the standard of proof here may be lower, but keep in mind that if a parent with young children (as most of those targeted for lawsuits have been) ended up in front of a jury of other parents, the prosecution would need to have a rock-solid case. It’s important to note that, back in October when we were speaking daily with attorneys handling the first round of lawsuits, all these lawyers kept saying: “if one of these cases went to trial, no one has any idea how it would turn out.”

Of course when the labels were suing people none of this was a problem. Faced with the risk of losing their home (damages could be assessed at $150,000 per song) parents predictably choose to end the whole nightmare and settle for $3,000-$10,000 (from a second mortgage, perhaps). But if the Department of Justice starts going after people with criminal charges, settlements won’t be in the picture–these cases will go to trial. And with the law as it is, they could very well lose. Back in January CNET’s Declan McCullagh puzzled about why the DOJ hadn’t already begun prosecuting filesharers despite intense pressure from Congress. Maybe now we’ve got the answer: the DOJ doesn’t think it could win. And if the U.S. Attorney General can’t win one of these cases, it’s not likely that any record label could.

Though again, when several giant corporations sue a family with kids, it doesn’t matter who’s right. Can you wait to see these companies start filing for bankruptcy? We can’t.