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Prosecuting copyright infringements

Before reaching for the phone and waking your Manhattan lawyer from his morning nap, you have to decide what and why you are planning to do. In our business legal action is the last resort, for two reasons. Firstly of course it's expensive and time-consuming, but labels are used to that. Secondly and most importantly it's bad PR. Everyone you speak to tomorrow will know that the RIAA is 'that thing that sued all the kids' but very few would be able to explain what the RIAA's job actually is. Bringing in lawyers makes a label appear heavy-handed and cruel, even though we're defending our legitimate business property. There's just something about music that makes people feel 'owning' it is somehow not a matter for people to fight over.

Why.. why why why WHY are you calling your lawyer?

There are two reasons why you (label, artist, agent, manager) would sue someone online:

1. To stop them doing something
2. To recoup financial losses from what they already did

Usually online fraud is perpetrated by people who think they'll "get away with it" and the merest contact from the copyright holders gets an apology and removal. A smaller hardcore of filesharers and counterfeiters see the music as fair game on a moral or legal level, and won't take notice of polite requests. Only in these cases do we see legal action as justified, but which type of action you take depends a lot on what they've been doing.

Online fraud, copyright infringement, counterfeiting and filesharing cover a wide range of possible activities and levels of criminality. All are illegal in the strict sence of the word, and all have the potential to impact on legacy sales for the artist. Many labels take the stance that every criminal is equal as it's too much like hard work to filter out the also-rans, but our philosophy is a little more layered. At one end of the scale is a fan website that posts an MP3 of a song for members to listen to, in the 'good intentions' mindset. At the other end are illegal CD production factories selling thousands of counterfeit products online or offline. BF@D tend to rank the severity of a fraudster against three categories:

1. Is the fraud entirely online or are physical goods being produced?
2. Is the intent to defraud, or is the person trying to promote or otherwise help the artist?
3. How many other people are likely to be/have been subject to the fraud?

Clearly anyone producing and selling CDs requires action as they are not only infringing copyright but are also defrauding their customers. Legal action to stop the process and also to recoup funds are both sensible in these cases. Few members of the public would see prosecution of a counterfeit production facility as immoral.

In many cases the person(s) involved claim that their intentions were not criminal. Naturally judging the truth of this requires experience, but in a lot of cases of filesharing via websites and scanning of magazine articles, the intent is to 'spread the word' and not to defraud the artist. It is usually relatively simple to determine if the fraudster likes the artist or not, and those that do tend not to want to impact on their income. We consider that people trying to act in good faith should not be prosecuted unless they refuse to cease their actions, and instead we prefer to start a dialog with them, explaining their potential impact and suggesting ways that they can help the artist. A great number of our best e-teamers are converted filesharers! Labels should consider someone hell-bent on promoting the artist to be an asset, not a target. Naturally their fraudulent activity must be halted, but we often make use of established fraudulent distribution channels (with the assistance of the original perpetrator) for counterfraud work. An established P2P or IRC operator can be ideal for use as a distributed seeding hub.

The last issue is the footprint of the fraud, meaning the number of online users and copies of files that have been delivered by the fraudulent source. A website that shifts thousands of MP3 files a day has a much larger potential impact on sales than a closed fan community with 5 members. With P2P and IM sharing it is often impossible to gauge the footprint directly, but instead the duration of the file's availability, the number of other sources and (ideally) the popularity of tracked seed files can be used to estimate the number of downloads per week. Anyone trading online can (eventually) be audited by serving papers on the credit card merchant, but free sharing is pretty much a guessing game with expertise giving the accuracy.

Taking the first steps...Mr Nice Cop

When online fraud has been found that does not relate to counterfeit products (we have already decided these always warrant legal action) then the first step in our procedure is a polite message. Going for an official notice with threats of action in the first instance will often get the wrong result, and you first need to establish if the person can be 'turned' by friendly conversation. We explain the fact they've been caught, that they're breaking a law or three, and that we'd like them to stop - but we do it in as nice a way as possible.

If the initial contacts don't have the desired effect then work needs to be done before moving to the next stage, as you will need to know a hell of a lot about the fraudster. This in itself can be a time-consuming and costly process and is yet another reason why a nice first email/phone call is best for both sides.

HOW you make the initial contact is also important. The best option is email, as it's less formal and to some extent shows the fraudster that you're prepared to enter their world. Adding receipt tags to emails is important, and if they don't get replied to then you have to resort to the mail or phone. Both need you to know the physical address of the target, and that is often horrendously hard to find without getting a subpoena.

Stage two...Mr Nasty Cop

If the fraudster refuses to play ball, then you have to start talking lawyerish - but not in the way you may think. Modern websites, P2P and IM sharing are very difficult to trace to the operator without some serious legal action, as the physical name and address of the site operator is often buried behind three or four layers of company records. It's possible to do, and we do it. So do the RIAA, and the DMCA makes it a lot easier PROVIDED the site is hosted in the USA.
The host for the website, or the ISP providing connectivity for a user (who is hosting their own server or sharing via P2P or IM) are vastly easier to get into court, as they have to make their physical details public. The vast majority of hosts and ISPs have clauses in their usage policies that prohibit illegal activity, and will be more than happy to pull the plug on a user you report to them. A lot will pull the plug even if they fight tooth-and-nail against revealing their users' address details, in those cases the 'sue to stop' option may be all you have. Within the USA the liabilities of hosts and ISPs for illegal content on their equipment is limited and classified under the DMCA Title 2, and many actions of an ISP are excluded. For example, a user downloading an MP3 file from an illegal website uses the physical equipment of their ISP to transfer the data down the phone line to their home. This 'transitory use' is excluded, so the ISP cannot be held in breach for allowing the user to transfer the data. However, if the host or ISP is shown to be aware of the breach while present and fails to act, then DMCA Title 2 also creates an extant right to seek damages AND to require provision of the user's physical address details. An example of this would be an ISP that provides free webspace, or internal NNTP groups, and is found to be hosting illegal files. By telling them the files are there, they are forced into acting to remove them or being found 'complicit'.

What if I can't find who to sue?

Any legal action must be taken against the perpetrator of the crime. As we have said, local legislation such as the DMCA grants certain rights enabling a copyright holder to sue others in the 'data chain' but also excludes some of them. There is often no equivalent to the DMCA in other countries, specifically the Far East, former Soviet Union and China. In those countries action must be taken using the national copyright-protection laws, and it is almost always easier to go after the hosting company or ISP instead of the end user. Sadly there remain some countries where the laws protecting copyright do not allow prosecution, and in those cases it is sometimes possible to take legal action against the sites via other routes. We are unable to discuss these methods in this public document for obvious reasons.

Example messages...

We have seen some wonderfully abusive messages sent to fraudsters, and also some inaccurate ones. Here's a few examples of what we may say ourselves..

Here's the 'nice email'. Note that we try really hard not to mention laws and courts in the first contact to the owner of a fan website who we've just found hosting a few MP3 files...

Now, John fails to take down the files and Alex has to roll up her sleeves...

Most people will roll over at this point, for those who do not then Alex passes the case details to the SexyMinx legal firm, and they can take the steps required - in this case it's under the DMCA so they can subpoena the contact details from the service provider and issue papers.

After reading this, you would do well to remember that there are three ways to make an enemy. Sleep with their spouse, eat their cat or sue them. Sex and snacking are forgivable.