Ministry of Sound Legally Threatens 2,000 Alleged File-Sharers

Mass litigation has commenced against 2,000 individuals accused of copyright infringement by Gallant Macmillan on behalf of record label Ministry of Sound. While this isn’t the first mass litigation in Europe, it is a style of litigation that even the BPI doesn’t condone.

Note: This is an article I wrote that was published elsewhere first. It has been republished here for archival purposes

The Guardian is reporting that 2,000 people were on the receiving end of another wave of legal threat letters saying that recipients better pay a settlement fee of an average of £350 each or face stiff penalties in court. While such letters are nothing new, the number of letters that were sent out isn’t entirely normal either.

What is interesting, though, is this note in the article:

Even the body that represents the UK recorded music industry, the BPI, which is keen to stamp out illegal filesharing, says it does not condone the mass-mailing of alleged internet pirates. “Our view is that legal action is best reserved for the most persistent or serious offenders, rather than widely used as a first response,” it says.

Some recipients panicked and settled while others simply tossed out such letters without any further incident. Some of the notes seem very unsurprising which detail people being very confused at the allegations since they haven’t even downloaded allegedly copyright infringing material. With a letter campaign of this magnitude, it’s hardly surprising that a few people who haven’t even heard of file-sharing is now being dragged in to the fray since it’s impossible to be accurate with the accusations to every single individual.

The reason it’s so difficult to be accurate is because investigators typically grab an IP address. Then, they stamp a time onto the activity and demand corresponding ISPs forward the complaints on to the subscriber. The big problem with this is that they are targeting an IP address, not a specific person. That IP address is usually the owner of that internet connection – the one that pays the subscription bills. Does this individual have someone else in the household that uses that connection? With the ease of Wi-Fi hacking, was that persons Wi-Fi connection hacked somewhere along the line? Was the IP address faked and happen to share the address of someone involved in the litigation? Any of these questions and more can easily throw an investigation awry and end up seeing someone who could very well be innocent accused of copyright infringement. With accusing less than a dozen at a time, it makes an investigation less complicated because there are fewer possible factors involved. 2,000 accusations, on the other hand, is impossible to track. You may as well have a map of England stretched over a dartboard and fling darts at it because accusing people by dartboard would be about as accurate.

The scale of 2,000 infringement letters is actually bigger when it comes to the fact that this is England since the population of England is 300 million. In order to properly scale the litigation campaign to the US by population, rough math says that there would have to be about 12,000 letters being sent at one time in the US to match the scale over in Britain (multiply by 6).

The question, though, is that are these simply hollow legal threats? The Guardian article seems to offer mixed signals on that:

Most recipients of the letters have binned them and, to date, avoided any further action. But Gallant Macmillan says it is taking a different approach to the other legal firms that pioneered this business, and that its sole client, Ministry of Sound, is serious when it threatens legal action. Until now, none of these cases have ended up in UK courts. A Ministry of Sound spokesman says that actions have been won in German courts, and it is confident that it can do the same in the UK.

So far, those that have called the rights holders bluff were successful in avoiding any trouble. Maybe British rights holders know better than to test the litigation waters and simply rely on cheap scare tactics to squeeze out money. Just looking at a summary of the British Bill of Rights would indicate that huge fines could be hard to get thanks to the provision that says, “freedom from cruel and unusual punishments and excessive bail,” and, “freedom from fines and forfeitures without trial.”

It’s two concepts shared by the US constitution according to Wikipedia. The reason why this is significant is because in the US, two court cases, so far, found the hundreds of thousands or millions in fines unconstitutional (Tenenbaum and Thomas). While appeals to stop the $2,250 per work standard is still possible at this point, it seems like the constitution is gumming up the gears of the litigation machine in the US. Since there are similarities in the Constitution of both countries, it’s entirely possible to see the same thing in Britain.

Litigation Style Questionable

Since the litigation campaigns have started, many have questioned whether it makes good business sense in the first place. If one were to look at some IRS forms from the RIAA, there is strong evidence that it doesn’t mainly due to how much is being spent in the first place.

Whether or not that is happening in Britain is beside the point if you read about a panel discussing the matter. The even was organized by British Black Music and there were many interesting points being made. From IP-Watches summary:

Copyright is critical to the survival of the music industry and its creators, but lack of respect for copyright is not why artists are struggling to make ends meet, argued a recent panel of media lawyers and music industry experts. The blame for that lies squarely on the corporate-focus of the music industry, and how it has bent copyright law to serve companies rather than composers, said a panel at the University of Westminster.

File-sharing too is an issue, but innovative thinking may be required to find new ways to manage music sharing practices which have become outdated, panellists said.

The “biggest flaw in music is not copyright, it’s business practice,” said attorney and lecturer Ben Challis. Business practices that shift rights from the author or song writer to companies are the reason that artists do not get paid, he added. A fair regime would protect artists as well as the corporate side, he added.

Copyright has “shown itself for what it truly is,” said Kienda Hoji, an entertainment lawyer and senior lecturer at the University of Westminster. It is a system that benefits those who want to make money, not the creators who deserve to, he said.

If you’ve been around the copyright debate as long as I have, these arguments have been around for a very long time – arguments that still seem to hold true to this day. It seems increasingly clear that the music industry people who constantly beat the sue-em-all drum are mainly of the ELL people – Executives, Lawyers, and Lobbyists. If you want a further example of this sort of thing, you don’t have to look too deep in to the Balanced Copyright for Canada attempted astroturfing to see this sort of thing in action.

At this point, the viability of a litigation campaign is starting to be a very questionable thing. Hardly any artists – if any – really benefit from one and stand to lose a lot. Already, there are signs that the litigation campaign, at least in the US, is creaking and groaning. Whether or not this is the beginning of the end for file-sharing lawsuits in the US remains to be seen. Whether or not history will repeat itself in the UK also remains to be seen. Still, one can’t help but notice the parallels between the US and UK litigation campaigns so far – thousands threatened, but no one for quite some time seeing a court of law.

Drew Wilson on Twitter: @icecube85 and Google+.

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