Thomas Sydnor, a Senior Fellow at the Progress & Freedom Foundation (PFF) – more about them here – has proudly announced that moving away from the practice of copyright holders suing their consumers is a “step forward for common sense and the rule of law on the Internet.” While Public Knowledge certainly agrees with that sentiment, Mr. Sydnor appears to be stepping towards something even worse.
Suing Potential Customers is Not a Sustainable Business Strategy
It has been clear for some time that the practice of copyright holders suing individual customers for copyright infringement has its flaws. First, it makes you incredibly unpopular with your customers. You end up getting bad press for suing 12 year old girls, dead people who hated computers when they were alive, 66 year old ‘computer neophytes’, and people in hospitals. That press usually focuses on the fact that the person being sued could not have possibly downloaded the content, either because they were in a hospital at the time, didn’t own a computer capable of running the P2P software they were accused of using, or might have been dead. Basically, you end up suing the wrong people (hey, it happens).
Second, some copyright holders have been tempted to take advantage of the fact that most non-lawyers freak out when they receive a letter threatening a lawsuit. As a result, they offer to let you avoid the pain and high cost of litigation by settling immediately for a “significantly reduced amount.” Of course, you may not have actually shared any files, but it is probably cheaper to settle than to hire a lawyer to defend you in court, right? And bonus, apparently shaking down scared people is lucrative.
However, there is one saving grace to the practice of suing individual customers for copyright infringement. The lawyer bringing the lawsuit knows that there is at least some possibility that the suit will go to trial. That means that, if there is not some legitimate (in this case legitimate is a low standard, but at least it is a standard) basis for the suit, the lawyer could be sanctioned under Rule 11 of the Federal Rules of Civil Procedure. Also – and not inconsequentially – if an accused file sharer does actually go to court, they have an opportunity to prove their innocence.
Three Strikes Saves Content Owners the Trouble of a Lawsuit
One of the many problems with “three strikes” proposals is that they keep the bad parts of the sue-your-customer model (makes you unpopular, sue the wrong person, is ripe for abuse), get rid of the good parts (due process, vague threat of disbarment for lawyers for flagrant abuses), and add an even worse part (you could lose all internet access, which can be useful for things like distance learning, looking for your tax refund, registering to vote, political discourse, or paying your electric bill.
That’s what makes this statement from Mr. Sydnor so bizarre. Mr. Sydnor is apparently so fearful of the “sudden financial devastation” that would result from his being sued by copyright owners for the illegal activity of his children’s caregiver (?) that he would rather avoid the whole thing all together. Since he finds due process so expensive, Mr. Sydnor “would far prefer” the free alternative of copyright owners shutting off his internet service on a hunch. Apparently in his world copyright holders and ISPs never make mistakes. Unfortunately, in our world they do.