File-Sharing Lawsuits, the RIAA, and the Sociology of Law

As most of you are well aware, the Recording Industry of America (RIAA) targets students who illegally download copyrighted content from peer-to-peer file-sharing networks. Over the last several years, KU copyright infringers have had to pay thousands of dollars for illegal downloads. The RIAA served a fresh batch of subpoenas to KU students during the Fall 2007 semester, leading to the creation of Student Senate task force to investigate and potentially change the way KU handles RIAA subpoenas.

When RIAA subpoenas landed at the University of Oregon, the school fought back by issuing a “blistering” motion to quash the request for student information. Among other arguments, the motion accused the RIAA of violating students’ rights by using a data mining company called MediaSentry.

What does this have to do with sociology?

A lot, I think . . . Here’s one sociological observation:

I see faint signs that file-sharing litigation is moving from “repeat players” suing “one-shotters” to a more complicated situation where other “repeat-players” (colleges, universities, and attorneys general) defend the interests of students. Before the University of Oregon jumped into the picture, students would receive a scary “prelitigation letter” saying that the RIAA was suing them into poverty, or – if they act fast – they could pay a “bargain settlement” of about $3000 by entering their credit card information at www.p2plawsuits.com. The RIAA has sent over 4,000 of these letters to more than 150 colleges and universities in the last four years.

Sociology of law superstar Marc Galanter published a 1974 article titled “Why the ‘Haves’ Come Out" which “has achieved uncontested canonical status within the broad range of college and university courses in law and social science. It has been cited more than any other piece of socio-legal research and is listed among the most well cited law review articles of all time.” (Kritzer & Silbey. 2003. In Litigation. pg. 4). He argues that the institutional position of people involved in lawsuits and legal conflicts directs participants’ legal strategies in ways that bolster the power and dominance of the “Haves” (the people who already have money and power, like the recording industry). By emphasizing institutional position and rational strategies that spring from that position, Galanter went against the then-prevailing Marxist and functionalist theories of how lawsuits affect society and reproduce inequality.

From page 14 of Galanter’s article (excerpted and edited):

FIGURE 1

A TAXONOMY OF LITIGATION BY STRATEGIC CONFIGURATION OF PARTIES

Initiator, Claimant

	One-Shotter	Repeat Player
One-Shotter	Scenario I OS vs OS Parent v. Parent (Custody) Spouse v. Spouse (divorce) Family v. Family (inheritance) Neighbor v. Neighbor	Scenario II RP vs OS Prosecutor v. Accused Finance Company v. Debtor Landlord v. Tenant RIAA v. College Student
Defendant
Repeat Player	Scenario III RP vs RP Welfare Client v. Agency Auto Dealer v. Manufacturer Injured Victim v. Insurance Company Tenant v. Landlord Defamed v. Publisher	Scenario IV RP vs RP Union v. Company Developer v. Municipality Purchaser v. Supplier Regulatory Agency v. Multinational Company Oregon Attorney General v. RIAA

Galanter’s model and argument helps us make sense of how things could change with the University of Oregon recent move to intervene on behalf of its state university students. Right now, the RIAA isn’t interested in soaking each student for the maximum they could get if they went to court. They want money that they can predictably extract from students over the long term. On the other side, the student wants it over and done with. They don’t want to spend thousands of dollars in attorney fees to fight a $40,000 lawsuit with an organization teeming with skilled lawyers, especially when the kind folks at the RIAA make it so darn easy for them to pay a settlement online. The RIAA is acting rationally as a “repeat player.” The student is acting rationally as a “one-shotter.” Their relative institutional position (powerful organization, college student) shapes their strategies, and helps explain why the RIAA can get away with – what appears to many as – habitual extortion. Now, the battle will be between repeat players; both will have a long-term outlook. Fred von Lohmann, a lawyer with the Electronic Frontier Foundation, said to the NYT, “The Oregon attorney general is showing what a real fight among equals would look like.”

Will the University of Oregon succeed? It’s hard to say. The article suggested that other parties have tried the university’s legal arguments before, with little success. Regardless, the fact that a states attorney general and a state university are standing up to the RIAA changes the fight considerably.

For more on the RIAA’s legal offensive against colleges and universities, check out these two articles representing the RIAA’s position and an opposing point of view.

-- Brian