by Mike Masnick

Filed Under:
lawsuits, trial


Is Ignoring RIAA Lawsuit Cheaper Than Going To Trial?

from the isn't-that-what-they-count-on? dept

A bunch of folks have been sending in Nate Anderson's article about how ignoring an RIAA lawsuit may be "cheaper" than going to trial. It makes for a nice storyline, but it's really not entirely accurate. It's based on the fact that Judge Gertner, who was the judge in the Joel Tenenbaum trial, just handed out some default judgments against people who never bothered to respond at all to an RIAA lawsuit over file sharing. In each case, Gertner chose the statutory minimum of $750 per song, much less than Jammie Thomas got in her two trials and Joel Tenenbaum received in his trial.

But, of course, these aren't apples-to-apples comparisons (not to mention that we're dealing with a classic "small sample size" problem). Specifically, the three trials involved a combination of poorly argued defenses that made the defendants look worse, combined with defendants themselves who both admitted to lying. And, add to that the fact that they're jury trials, where juries tend to give out larger awards than a judge does, and it's really not a huge surprise. If you had defendants who actually had a real case, combined with a defense team that actually argued the specific points, things might have been different. But, it looks like, with both Thomas and Tenenbaum, the goal was to create a bigger case that can get attention at higher levels to take on certain aspects of copyright law itself.

And, of course, as an addendum on the article notes, it's still probably cheaper to settle up in the first place, but that's exactly how the RIAA intends things to be. It's the same principle on which an extortion scam works: it's cheaper to pay up than to fight it. But, that doesn't mean it's right to just shut up and pay -- especially if the accused is innocent. As much as the RIAA must love Anderson's article, because it encourages people not to fight its lawsuits, the reality is a lot more complicated.

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  • icon
    Dark Helmet (profile), 28 Sep 2009 @ 12:26pm



    (Seriously, that one ain't ever gonna get old)

    reply to this | link to this | view in chronology ]

  • icon
    Thomas (profile), 28 Sep 2009 @ 1:35pm

    Why shouldn't the **AA do what it wants?

    They can accuse as many people as they want on the most doubtful evidence and extort money from them. they have enough political clout to prevent them from ever being investigated for extortion or fraud. After all, how much do you think the **AA contributes to politicians and regulatory boards? A lot, whether it's cash to "charities" (read re-election funds or slush funds), drugs, hookers (although I guess these days they have to provide hookers of both sexes), free trips, or whatever. I wonder if they even go as far as to offer to get rid of politicians enemies?. The worst that can happen to **AA is they might get a slap on the wrist from judge they forgot to send money to. Don Corleone said in "The Godfather" (more or less) "2 lawyers can steal more than 10 men with guns", which is probably not the exact quote, but it's to the mark.

    reply to this | link to this | view in chronology ]

  • identicon
    LoL, 28 Sep 2009 @ 1:39pm

    Maybe in 20 years

    Won't need to fight anything after all laws and counter measures that don't work serve no purpose at all.

    The funny part being that people show no signs at slowing it down, so either people lost their self preservation instincts or they are angry with something :)

    Should the industry wait another 10 years to see were this all goes I think they will be very sad at the end.

    reply to this | link to this | view in chronology ]

  • identicon
    Nick Coghlan, 28 Sep 2009 @ 8:20pm

    Not really disagreeing with Ars

    I don't think you're really disagreeing the Ars article here. Anderson was looking at it from a purely monetary point of view and noting that a default judgment from a judge in one of these cases is likely to be for the minimum $750 a song, whereas juries may award significantly more if they decide they don't like you.

    He didn't go into the issues of whether or not it is right or just that economic incentives are stacked so heavily in favour of giving in to the RIAA's demands. Anderson was merely pointing out that going to trial when you're guilty of exactly what you're being accused of and you have other options is probably a bad idea. (And, let's face it, that is probably the case for most of the RIAA's accusations - the times when the RIAA are blatantly wrong get noticed because they're the exception, not the rule. Hell, if the MPAA wanted to get into a similar game they could just sue anybody that uses a lot of bandwidth in offpeak hours and be right more often than not - people downloading movies are going to be far more common than shift workers watching legally downloaded HDTV).

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 28 Sep 2009 @ 9:04pm

      Re: Not really disagreeing with Ars

      A fair summary. Settle for a relatively modest amount, fail to answer and take a default where damage awards will likely be much larger, or be foolish such as were the defendants in Minneapolis and Boston.

      In the Tenebaum case the offer to settle remained on the table at all times prior and subsequent to the verdict. For reasons known only to Tenenbaum he declined and is now in the unenviable position of likely having to appeal before the US Circuit Court of Appeals having jurisdiction to hear cases in the area that includes Boston.

      reply to this | link to this | view in chronology ]

  • identicon
    Sam, 8 Oct 2009 @ 3:52pm

    because he DID try to settle

    Anon, he DID offer to settle. Why does everyone think he's a madman who never tried to settle?

    He offered them $500 at first and later on, $5250. Seeing as how he stole 30 songs, that would be an offer of 175 times the ACTUAL damage he caused and the RIAA turned it down. A better question to ask than why didn't he settle, was why didn't they? They've spent over a million dollars prosecuting him and now it's just bankruptcy which gets them nothing.

    reply to this | link to this | view in chronology ]

  • icon
    syber (profile), 12 Oct 2009 @ 8:15am

    Not an apples to apples comparison

    ignoring an RIAA lawsuit may be "cheaper" than going to trial.

    It is more the story ignore or pay them. This because going to trial is not an option for most. Litigation costs will reach $10,000 before you can begin trial preparation. The trial will cost another $25000.00 or more. These suits are so successful because the RIAA or Directv drives litigation costs up early on so that you will be out of money long before you could ever consider a trial. In the end, many innocent people have paid the RIAA and Directv. Both Directv and the RIAA know that by driving up costs early on, they will be able to collect from innocent people and have done so. In the end though, where a court up holds the practice of claims against innocent people the court itself looses all credibility. How many millionaire's you see being sued by the RIAA or Directv? The RIAA or Directv suing a millionaire would be a loosing proposition. They can only profit from hitting the innocent person who is also the little guy.
    Here is my site where this unfolded:

    reply to this | link to this | view in chronology ]

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