In the fall of 2003, suing direct infringers may have been the only recourse left to the recording industry. The industry faced a long-term trend of a decrease in sales, due largely to file-sharing. The decline in album sales following the inception of Napster, from 1999 through 2002, had been the most dramatic in the past 30 years. CD sales were down from $13.2 billion in 2000 to $11.2 billion in 2003. The industry's victory in Napster was fleeting, as publicity over the issue increased awareness of peer-to-peer (P2P) technology and users flocked to decentralized networks like Grokster and KaZaa, making it more difficult to track P2P use. And in April 2003, the RIAA lost its case of contributory and vicarious infringement against Groskter in a California district court. In a desperate move to address the P2P epidemic, the recording industry filed a first round of lawsuits against its own fans in September 2003.
In December 2003, the District of Columbia Court of Appeals' decision in Verizon complicated the litigation process by prohibiting the RIAA from using the Digital Millennium Copyright Act's (DMCA) subpoena provision to compel Internet service providers ("ISPs") to disclose alleged infringers' identities. Without the benefit of the DMCA's subpoena provision, the RIAA must file "John Doe" suits using alleged offenders' numerical IP addresses. Moreover, Doe defendants have made motions to quash subpoenas, raising First Amendment, privacy, personal jurisdiction and improper joinder claims." Finally, in the most recent setback for the RIAA's litigation strategy, the Ninth Circuit Court of Appeals' affirmed the district court's decision in Grokster that P2P networks Grokster and Streamcast are not contributorily or vicariously liable for users' direct infringement."
Despite the above obstacles, the RIAA has proceeded, seemingly unfazed, in its litigation strategy. Its latest round of suits, in December 2004, targeted 754 more "Does." This Article analyzes the effectiveness of the industry's litigation strategy against direct infringers. Part I discusses the costs and benefits of the lawsuits, concluding that the benefits outweigh the costs. Part II offers suggestions for additional ways the recording industry can increase the efficiency of its enforcement efforts.
An Analysis of the Recording Industry's Litigation Strategy Against Direct Infringers,
7 Vanderbilt Journal of Entertainment and Technology Law
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