The RIAA has stopped filing lawsuits… only they haven’t quite, and they’re not going to stop just yet, either.

Perhaps the biggest splash I missed while dealing with the chronic power failures out in central MA would be the surprise announcement from the Wall Street Journal that the RIAA will stop their 5-year campaign of filesharing lawsuits, opting instead to team up with ISPs to set up some sort of warning, “three-strike” system.

WSJ:

After years of suing thousands of people for allegedly stealing music via the Internet, the recording industry is set to drop its legal assault as it searches for more effective ways to combat online music piracy. […]

Instead, the Recording Industry Association of America said it plans to try an approach that relies on the cooperation of Internet-service providers. The trade group said it has hashed out preliminary agreements with major ISPs under which it will send an email to the provider when it finds a provider’s customers making music available online for others to take. […]

The new approach dispenses with one of the most contentious parts of the lawsuit strategy, which involved filing lawsuits requiring ISPs to disclose the identities of file sharers. Under the new strategy, the RIAA would forward its emails to the ISPs without demanding to know the customers’ identity.

Though the industry group is reserving the right to sue people who are particularly heavy file sharers, or who ignore repeated warnings, it expects its lawsuits to decline to a trickle. The group stopped filing mass lawsuits early this fall.

It isn’t clear that the new strategy will work or how effective the collaboration with the ISPs will be. “There isn’t any silver-bullet anti-piracy solution,” said Eric Garland, president of BigChampagne LLC, a piracy consulting company.

Mr. Garland said he likes the idea of a solution that works more with consumers. In the years since the RIAA began its mass legal action, “It has become abundantly clear that the carrot is far more important than the stick.” Indeed, many in the music industry felt the lawsuits had outlived their usefulness.

Be sure to also read the Wired piece interviewing Cara Duckworth (cue a bazillion Mighty Ducks references) of the RIAA. She lays some initial fears to rest: namely, that this ISP/RIAA operation would not be filtering, but some sort of warning system. Naturally, that system is ripe with its own problems – how are we to appeal or challenge the accusations of the RIAA? Will the user in question be party to the messaging between the RIAA and ISP?  I’m reminded of the YouTomb operation coming out of a bunch of brilliant kids at MIT, where they track the takedown notices coming from YouTube in an effort to check their validity. I wrote a bit more about this operation last May after the Berkman@10 conference. Their problem is the same that users will see in this RI(SP)AA solution – where is their day in court to challenge these warnings?

But, we may not even be able to trust Ms. Duckworth’s statements as far as to believe their attack plan won’t involve Internet filtering (which is also a terrifying idea, and if you don’t believe me take a read at Lessig’s Code). There’s another statement she made that warrants some serious scrutiny. According to her, the RIAA not only plans to phase out the lawsuits, but they haven’t filed a new lawsuit in months. Well, Ray Beckerman over at Recording Industry vs. the People had a little bit of fun disproving that. Here are a handful of lawsuits filed last week:

Atlantic Records v. Williams. Filed in W.D. Pennsylvania, filed 12/15
Sony BMG Music v. Linus, S.D. Florida, filed 12/11
UMG Recordings v. Gulledge, M.D. Alabama, filed 12/10
Sony BMG Music v. Van Ornum, W.D. Arkansas, filed 12/10
Interscope Records v. Tabor, W.D. Arkansas, filed 12/10
BMG Music v. O’Brien, D. Arizona, filed 12/10
Priority Records v. Easterling, C.D. California, filed 12/10
UMG Recordings v. Ibarzabal, C.D. California, filed 12/10
Interscope Records v. Does 1-3, D. Connecticut, filed 12/10
UMG Recordings v. Burmeister, C.D. Illinois, filed  12/10
(the list goes on a disturbing length, as you can read above)

After this, Duckworth has come back to Wired and said:

“We are not initiating any new lawsuits and have not since August. Any lawsuit that has been filed since then is a named lawsuit or those for which we’ve received identifying information about the ISP (or issued the subpoena for). Simply put, we are continuing those that have already been in the pipeline but nothing new has been initiated since August.“

Whether that is true or not will have to remain to be seen. I’m sure Beckerman will keep us all in the loop.

It is well established now, as seen in countless articles last week, that the lawsuits did not have their intended effect. Filesharing has not diminished. When Napster was killed Grokster, Kazaa, Morpheus, Soulseek, and countless others rose to take its place. Kill Grokster, and now you have BitTorrent.  Sue individual users, and the masses are left undeterred. So, why continue the lawsuits? Perhaps the RIAA is acting out of fear of being exposed that the lawsuits were little more than abusive scare tactics (and those Rule 11 sanctions can sure cost an organization), perhaps they are hoping this time the message will get out and the users will be deterred, or perhaps they just want that steady strem of $3000 settlements to slowly mitigate their monstrous legal fees.

Regardless of the reason, they aren’t going to stop. Charles “Eon” Nesson, in his appealingly voyeuristic way, has disclosed a letter on the subject from RIAA president Cary Sherman:

I hope you understand that we can’t just walk away from cases we’ve filed. Doesn’t mean we want to litigate everything, we’d obviously prefer not to. If you have any thoughts on a resolution, I’d be all ears.

Sorry I couldn’t tell you months ago that we were getting out of the lawsuits, but I’m sure you understand.

It’s sad to think, more than anything, that the RIAA used to be a profoundly good organization. It was the RIAA that agreed to standardize the production of phonograph records so users could play records from any company on any company’s record player. This doesn’t sound like much today, but consider people who bought HD-DVD over Blu-Ray, or Betamax over VHS, and now are left with no device with which they can play albums. Or, perhaps a better analogy, consider the people who bought DRM-locked music from Yahoo, MSN Music, or Virgin. There was a time when the RIAA would band together to make sure that other players would take in the music purchased from these carriers. Not so today.

There are many efforts underway to reunite the industry with its chief consumers. As countless thinkers have noted (including my personal favorite, Peter Jenner), the real tragedy of the RIAA situation is twofold. First, those in charge of the record industry today – with the exception of some raw MBA-types who treat a business as a business, regardless if they are selling music, cars, or cigarettes -  are people who adore music, and, had they grown up with my generation, would have been all over filesharing services like Soulseek. Filesharing is the tape-trading of my generation. I have little doubt of that. Second, the people they sue are their biggest audience. People have disposable income while in college they will not have again for a decade (I’m learning this fact the hard way). They have an energy to consume, a desire to buy music, and will never let the fact that they have class in the morning stop them from going to shows, buying CDs, and supporting their favorite artists. Why give the cash cow of the industry the boot? There are solutions to be had, and I hope soon the industry finds them.

I’ll echo what Beckerman said. For those of you spending Christmas morning downloading some new tunes with some gift cards, consider buying only from indie artists. Use the RIAA Radar to check if an artist is or isn’t affiliated. Perhaps some Tom Waits, Man Man, Fleet Foxes, Le Loup, Sufjan Stevens, Minor Threat, Sigur Ros, or Hold Steady? Maybe some Brian Bergeron? Really anything from Matador, Sub Pop, Dischord, Asthematic Kitty, Anti-, or Merge is dandy. There’s heaps of good, guilt-free music to be had.