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ABA States Obvious: Suing File Sharing Pirates is a Stupid Idea

By William Peacock, Esq. | Last updated on

The ABA's Section of Intellectual Property Law just released an interesting white paper, one that every Internet Law geek should read: "A Call For Action in Online Piracy and Counterfeiting Legislation." It's an exhaustive 133-page PDF file that delves into everything from taking action against individuals and predatory foreign websites, to legislation meant to aid in the defense of intellectual property against online piracy. Personally, I'm especially curious about what the ABA has to say about controversial legislative proposals, such as the Stop Online Piracy Act (SOPA), which was protested against by pretty much the entire Internet.

But for now, here's a little tidbit of advice from the paper that is obvious to anyone who has followed the waves of filing file-sharing lawsuits against individuals over the past couple of decades: it isn't worth it. (H/T to Ars Technica.)

PR Nightmare

"Finally, while it is technically possible for trademark and copyright owners to proceed with civil litigation against the consuming public who affirmatively seek out counterfeited products or pirated content or engage in illegal file sharing, campaigns like this have been expensive, do not yield significant financial returns, and can cause a public relations problem for the plaintiff in addressing its consuming public."

In short: it's an expensive path where the end-user will likely never pay up, and it's a public relations nightmare.

There are stories galore about grandmothers being sued (even though her computer couldn't run the file-sharing software), people with unsecured Wi-Fi networks being mistaken for bootleggers, and more. Each of these made the industry associations appear to be evil, greedy, and out of touch with reality, even though they were perfectly within their rights to pursue litigation to protect their members' intellectual property.


The music and movie industries are the perfect examples. As the ABA's white paper notes, both initiated lawsuits against file-sharers before eventually wising up and realizing that the financial and PR cost weren't worth it. They then focused on educating consumers.

More importantly, at least from my point of view, was that they changed their business model. As a consumer, I haven't purchased an album in years, and almost never buy movies (except true classics) anymore. Instead, I subscribe to monthly subscriptions services: Netflix, Spotify, etc.

Ever since Napster, it has been as easy as checking your email to download a bootleg song or movie, so both industries had to respond by embracing new business models (and new technology) that made accessing content just as easy as bootlegging. Making it affordable helps too -- $10 for an album with one good song was a huge reason why Napster was so popular. Spotify, and its rival music streaming services, run about $10 a month for unlimited music streaming.

As lawyers, we'd like to think that litigation is the best way -- after all, we gotta eat too. But as is true in many legal scenarios, often the alternative (mediation, plea bargaining, new business models) is what is best for the client.

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