RIAA Likely Wins the IP ADR 2007 Bully Award
When a body as pro-business as the American Bar Association calls out an industry group for bullying, it's time for that organization to take a close look at its behavior in the marketplace.
Remember, it's not just about the law.
It's about civilization, community, ethics, even etiquette.
It's about making allies rather than enemies. It's even about -- gasp -- doing good. Or at least not doing any harm.
(image from Will Blog for Experience -- RIAA: Screwing You Since 1952)
So why is the Recording Industry of America Association the likely winnner of the IP ADR Dictionary's 2007 Bully Award?
Because it continues to act like a sixth grade kid shaking down the first graders for their lunch money on the primary school playground.
But first the definition of a bully in his full social context.
In their 2005 article Bullying roles in changing contexts: The stability of victim and bully roles from primary to secondary school academics Mechthild Schafera, Stefan Korna, Felix C. Brodbeckb, Dieter Wolkec, and Henrike Schulzdam use as their "bully" definition the systemic one:
[the] repeated and deliberate . . abuse of power [which is] most likely to occur in relatively stable social groups with a clear hierarchy and low supervision, as is found in schools, the army, or in prisons.
In this context, say the authors "[a]n aggressive individual’s search for dominance can be facilitated by a hierarchical structure in that it makes low-status individuals visible and easy to get to."
This definition of systemic bullying fits to a "T" the behavior described in the recent ABA Journal article Plaintiff to RIAA: Download This!
The attorney subject of the article who is litigating a malicious prosecution suit on behalf of a woman wrongfully sued for illegal downloading, says that the RIAA,
targets people [for downloading infringement actions] without the resources to challenge the lawsuits. . .
According to [the malicious prosecution filed on behalf of his client] a support center employee told [Plaintiff] that unless she paid the [RIAA] $4,000-$5,000, she would be ruined financially. Additionally, the action states, the claim center employee told Andersen that he believed she was innocent, but she should pay something anyway.
“He explained ... that defendants would not quit their attempts to force payment from her because to do so would encourage other people to defend themselves,” the complaint states.
At issue is the RIAA's methodology for identifying infringers, a methodology that is not "100 percent" according to law professor Jonathan Zittrain.
According to Zittrain, a professor at Harvard Law School and the University of Oxford, none of the infringement actions has gone to a verdict.
Some suspect that many of the association’s suits have resulted in default judgments because many defendants cannot afford legal representation. Cases might settle for far less than the initial demand.
“I heard of a $300 settlement they just took,” says Jason Schultz, a senior staff attorney with the Electronic Frontier Foundation. According to Schultz, the RIAA outsourced much of the copyright infringement litigation “factory style” to small law firms, and it hired nonlawyers to negotiate settlements.
Though Jonathan Lamy, RIAA’s senior vice president of communications, claims that the group’s investigation methods are sound and that it is not pursuing those who cannot afford legal counsel, everyone knows that few ordinary citizens could afford the legal representation necessary to defend themselves against the type of aggressive and well-orchestrated campaign described by the ABA article.
So why is this bullying?
Bullying, like pornography, is one of those things you know when you see. That the RIAA's illegal downloading campaign perfectly fits the academic description of bullying therefore comes as no surprise.
The RIAA's "deliberate and repeated" use of powerful computer technology to investigate consumers' downloading activity, coupled with its well-orchestrated use of an army of low-paid attorneys and collection agents to deliberately and repeatedly bring suit against consumers who might be potential -- but certainly not proven -- illegal downloaders is marketplace bullying at -- frankly -- its most shocking.
And though the RIAA spokesman insists that it does not "target" those who cannot afford legal representation -- how many of us -- even the professionals among us -- could?
This is systemic bullying at its most definitional
[the] repeated and deliberate . . abuse of power [which is] most likely to occur in relatively stable social groups with a clear hierarchy and low supervision, as is found in schools, the army, [] in prisons . . .
or simply in the marketplace.
Nobody likes a bully. It's time for the RIAA to do a little soul searching about its place in the society that supports its members by buying their products.
When its the ABA -- not the ACLU -- that marks you as a school yard bully, you're not making any friends -- only enemies. And no organization, no matter how powerful, can afford that.
