January 29, 2003

RIAA and ISPs vs file-sharers

Edward Felten comments regarding my message RIAA vs. file-sharers, civil and criminal approaches and analysis of "Where's The Money", in part:

The reason for this, Seth says, is that ISPs have money and average file sharers don't. He has a point here, but he also makes a bit of a simplification. Though the common image of file sharers is of kids, my guess is that the demographics of file sharers are pretty close to those of music buyers. Data on this point are pretty hard to come by, but Napster's statistics showed more middle-aged users than expected, and I assume that hasn't changed with the new systems.

To clarify, I didn't mean a kids/middle-aged distinction. Rather, I meant that in terms of the value for the lawyer-time involved, suing an average individual in a copyright-dispute is not a cost-effective proposition, or useful redress. It's not about looking like a "bully", or doing "dirty work". Rather, that the costs of pursuing any civil-suit would exceed any reasonable asset recovery. Just work it out - what could expected from an individual? If we take $50,000 (likely extremely high), that's a break-even point of 100 lawyer-hours at $500 an hour. The fact that a file-sharing case could generate a theoretical damage claim of a zillion dollars of statutory damages, does not mean it could obtain that money. So the only reason to pursue such cases would be for intimidation value, and such value is not evident with regard to an unskilled activity

I'm reminded of this passage from the DeCSS decision

Copyright and, more broadly, intellectual property piracy are endemic, as Congress repeatedly has found. [FN230] The interest served by prohibiting means that facilitate such piracy--the protection of the monopoly granted to copyright owners by the Copyright Act--is of constitutional dimension. There is little room for doubting that broad dissemination of DeCSS threatens ultimately to injure or destroy plaintiffs' ability to distribute their copyrighted products on DVDs and, for that matter, undermine their ability to sell their products to the home video market in other forms. The potential damages probably are incalculable, and these defendants surely would be in no position to compensate plaintiffs for them if plaintiffs were remitted only to post hoc damage suits.

In a sense, there's an obvious point here about copyright, which has subtle implications. Copyright damages are almost all not "actual" damages - they are monopoly impairments. All the talk of "intellectual property" is again leading us to think in property-like terms. But copyright is less about property _per se_ than monopoly. I believe some discussion about action against file-sharers is arising from a thought-path that leads from the idea, if copying is theft, why not go after the supposed thieves? But the "problem" here isn't theft, it's impairment of monopoly.

So where is the control-point, where application of lawyers yields effective maintenance of monopoly? (which is what I meant to address by "Where's The Money") Not the file-sharing users. The ISPs. It's not that ISPs have deep pockets, but rather that the ISPs economic incentive of maximum money made, coincides with the RIAA's goal of minimum (lawyer) money spent.

With regard to business, I've found, to a very large extent, almost nobody cares about looking like a bully. The DMCA actions even now are replete with horror stories - price data, global pre-emptive letters, to what might be called "creative applications". That's the PR department's job to clean-up. There will certainly be much journalism-fodder in ISP-based enforcement. But I'm skeptical how much that will matter in the greater scheme of things.

Again, I concur with the conclusion. But I think the reasoning in use, and necessary and sufficient to reach it, is strictly and bloodlessly economic.

By Seth Finkelstein | posted in copyblight | on January 29, 2003 09:11 AM (Infothought permalink) | Followups
Seth Finkelstein's Infothought blog (Wikipedia, Google, censorware, and an inside view of net-politics) - Syndicate site (subscribe, RSS)

Subscribe with Bloglines      Subscribe in NewsGator Online  Google Reader or Homepage