For years, the entertainment industry campaigned hard against consumers who engaged in illegal file-sharing of copyrighted material, suing thousands of individual users over that time. Now, the American Bar Association is encouraging those groups, and ABA members, to take a different approach.
Illegal online file-sharing is still a problem in this digital age, but the American Bar Association thinks the entertainment industry needs to change course in how it’s combating offenders.
In a new white paper [PDF] released earlier this month by the ABA Section of Intellectual Property Law (IPL), the group urged the entertainment industry and ABA’s 400,000-lawyer membership to stop moving forward with online file-sharing lawsuits against individual consumers, calling the practice costly and bad for public relations.
“While it is technically possible for trademark and copyright owners to proceed with civil litigation against the consuming public who affirmatively seek out counterfeited products or pirated content or engage in illegal file sharing, campaigns like this have been expensive, do not yield significant financial returns, and can cause a public relations problem for the plaintiff in addressing its consuming public,” they wrote.
The paper cited campaigns initiated several years ago by the Recording Industry Association of America and the Motion Picture Association of America. In RIAA’s case, the group filed lawsuits against more than 18,000 individual consumers, most of whom paid settlements of a few hundred dollars in order to avoid damages that could have totaled $150,000 per infringing use. (One person who did not, Jammie Thomas-Rasset, received a much-stiffer penalty in court.) MPAA’s campaign was similar but on a much smaller scale.
In defending the approach, RIAA said on its website that the lawsuits helped bring awareness to the fact that file-sharing is an illegal practice. Prior to the campaign, only 35 percent of people knew it was illegal, but that number more than doubled, RIAA said. “If awareness of the copyright laws and an appreciation of the consequences of getting caught for breaking the law had not had an effect, [peer-to-peer] growth rates would likely have continued unabated, and would have seriously undermined the potential for a legal digital marketplace,” the group said.
RIAA and MPAA have both abandoned the litigious approach, however, and opted for a consumer educational campaign—an approach preferred by ABA.
“The IPL Section does not believe that legislative action directly targeting consumers would prove effective in reducing piracy or counterfeiting at this time,” the ABA said in the white paper. “Alternatively, a well-constructed and continuous public outreach campaign to educate the public about piracy and counterfeiting, the negative impacts these activities have on the U.S. economy, and ways consumers can be proactive in trying to stop such conduct may have a longer lasting positive impact.”
Further, ABA said Congress should continue to look into possible solutions to the “injuries suffered by U.S. businesses and consumers as a result of massive online piracy and counterfeiting.”