| HN Mirror

RIAA messed up its litigation strategy by pushing its cases to the extreme and drawing headlines such as "$4.2 million verdict for downloading 28 songs" and the like. That strategy was clearly a bullying strategy but it was a stupid bullying strategy. It was stupid because it caused the public to recoil at the thought that a poor student (or some such person) would be ruthlessly crushed at the hands of a bunch of greedy record labels for having done something that didn't seem to deserve anywhere near such punishment. Eventually, the courts themselves came to the same position and dramatically reduced the damages awarded in such cases. RIAA had to abandon this strategy once it became clear that it would not really deter such downloading that much and, if it did, it would not be worth the price of the public relations disaster it was causing.

One thing to note about the RIAA strategy, however, is that, whatever the caliber of the legal talent on the defense side, RIAA still managed to win most of the cases on their merits. In other words, however much a defendant resisted, liability tended to be imposed at some level. Thus, it was primarily the excessive damage claims that got RIAA into trouble, not the legal merits of its claims as such.

Given that background, in this current spate of cases, you still have nothing more than institutional bullying, just as with RIAA but it is a low-level type of bullying of the "pay us $1,500 and we will forget this ever happened" variety and not of the "we will crush you and take your last penny" variety. This means that anyone who wants to fight this - even with good defense help from quality lawyers - will be at risk of incurring costs and liabilities that will easily exceed the walk-away payout that would simply allow them to put a bad episode behind them. And, if even a quality defense will not likely spare you from liability of some sort in the average case, it just isn't worth fighting for the average person. Thus, by not overreaching, the plaintiffs in these suits have actually strengthened their position. In effect, they are playing the numbers - by intimidating thousands of individuals into paying small amounts, they are ultimately gaining a significant payout in the aggregate.

Of course, this would not necessarily hold in more doubtful cases where a real defense might exist. But for the average user who simply did an improper download, there is no percentage in fighting it.

It might be that EFF has a good answer and their hearts are in the right place - but, unless there is radical change made to existing copyright laws, basically there is no good institutional response to this pattern of low-level bullying. Yes, an individual case might be successfully fought but, even if that case is won, it will only be for some failure of proof to show liability in that case alone. This does nothing to change the template for the mass of cases. And, if the plaintiffs in such cases can't be shamed into dropping them (as RIAA was), I don't see that they will.

Sorry to sound a down note but I think this is a realistic assessment. I would love to be wrong on this.