Originally posted 2012-02-09 13:59:19. Republished by Blog Post Promoter

Blind justice and plaza, Federal courthouse, NewarkLast June, blogging about my presentation to the Copyright Society on the Righthaven litigation, I wrote the following:

This brings us to the issue of mass enforcement a la RIAA and MPAA

  • Mass enforcement sweeps
    • Complete de-linking from any concept of blameworthiness, much less intent
  • Disproportionate penalties and fees
  • Results of mass enforcement:
    • Consensus is that it is ineffectual
      • Continual calls for enhancement of procedural and penal “tools”
      • Effects some unknown quantum of in terrorem deterrent
      • Crystallizes an anti-copyright, anti-establishment sensibility among militant downloaders
      • By targeting non-militants who act out of either ignorance or as casual scofflaws, makes anti-copyright, anti-enforcement
      • RIAA supposedly paid its lawyers more than $16,000,000 in 2008 to recover only $391,000*
        • Reminder about motivation for our criticisms here icon wink Massive Attack:  Analyzing mass copyright infringement campaigns

Now, note that asterisk at the hyperlinked bullet point.  The footnote in my blog post said:

* At the conference, a person in the position to know stated in the question-and-answer session that this figure was utterly innaccurate.  I am looking forward to receiving more accurate information.

Actually, it was two persons, but I never did get any information.  Still, even as I wrote this I remember acknowledging that the argument itself was flawed, regardless of the empirical truth of the factual claim at its base.  And just because I never got the information, which I was thinking would be an appropriate launching point for me to acknowledge my logical flaw, doesn’t mean I shouldn’t do so anyway.

The flaws are pretty obvious.  The obvious one is that you can get a lot of injunctions for $16 million.  And as we know, it is an axiom of chancery practice that the remedies of equity are typically, and usually when referring to injunctions, utilized in situations where those seeking them “have no remedy at law” — i.e., no money could, in theory, substitute for an order forbidding the complained-of behavior.  Lots of parties spend lots of money suing defendants, and in meritorious causes, where there is no prospect of a concomitant recovery.

The less obvious flaw in my argument flows from the obvious one:  Whether we put a $100 million value on the non-monetary relief obtained by these lawsuits or a $100 value, it’s not our money.  Companies routinely decide on litigation as part of a legal and business strategy which, even in a more general sense than set out above, is not evaluated solely from the point of view or even at all from the point of view of whether it will bring in dollars directly.

Protecting a right, or a perceived right, typically comes at a cost.  If that right enables massive profits, the incurring of massive costs to protect it — whether by recovering damages, achieving cessation of activities that threaten those rights or merely as an in terrorem policy — are entirely rational.  I have argued in connection with trademark bullying and in connection with copyright overreaching that the problem is not with litigants or even, unless they act unethically in the performance of their duties, with the lawyers who represent them in pursuing these rational policies:  It is with the judges who fail to ask “what is really going on here?” and a lapdog Congress that, notwithstanding the recent hesitation concerning SOPA, doesn’t even seem to care.

So it may make perfect sense for the RIAA to spend whatever it spends to get whatever its management and members deem worth getting (and at the price they’re getting it).  Who am I to say?  Strike that argument from the bullet points.

By Ron Coleman

I write this blog.

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