Know Your Rights: What to do when the RIAA comes calling

By Nilay Patel

posted August 31st 2007 7:37PM

Know Your Rights is Engadget's new technology law series, written by our own totally punk copyright attorney Nilay Patel. In it we'll try to answer some fundamental tech-law questions to help you stay out of trouble in this brave new world. Disclaimer: Although this post was written by an attorney, it is not meant as legal advice or analysis and should not be taken as such.

Preface: There's been a lot of discussion about the RIAA's, shall we say "controversial" (and we're being generous here) tactics in suing P2P users who download copyrighted content; especially this week, what with the EFF releasing its "RIAA v. The People: Four Years Later" report. But it's never been easy to find information about the nuts-and-bolts of what happens when you get that first letter from the RIAA. We're not going to get into our feelings about the RIAA and MPAA (you probably already know what we think), but since we've (read: Nilay) been involved in a couple successful defenses -- and a lot of unhappy settlements -- we thought we'd try and break down the process for you. We're not telling you how to avoid or get out of trouble with the RIAA, just how it is that trouble usually operates.

Help! I'm being sued by the RIAA!

Wow, bad luck for you. The RIAA really only sues about 6,000 people a year, mostly those who use FastTrack clients like Kazaa. Users of other networks have been sued, of course, but it's by far Kazaa users who get sued the most often, and generally those who have been unknowingly sharing files. That's a drop in the bucket compared the to estimated nine million people who use P2P software every month.

That doesn't help me at all.

Well, it's important to think about these things in context. Also, it's important that you take a moment to ask yourself a really essential question.

What's that?

Did you do it?

What? No!

Look, if you REALLY didn't share anything, you can skip on a couple paragraphs. But it's really important to be honest with at least one person here, even if that person is just yourself. If you really did share files, you're really not going to gain anything by fighting some noble battle. Especially if money is important to you. Did we mention how much money the RIAA's legal team has? If the RIAA's logs show the IP address associated with your internet connection as having downloaded certain files, chances are you're going to end up paying one way or another.

Whatever, sellout.

Look, at this point it's not really a moral issue, it's a financial one -- if you did what they say you did, you're vastly better off paying the money and moving on. It's not a criminal charge, and the terms of the settlement will be most likely be confidential, so it won't come up again in your life. Paying a lawyer to fight and lose for you will likely just cost you more money, because the RIAA will get at least $750 for each track you've shared, and for the average P2P user that adds up fast.

There have been cases where users with open Wi-Fi networks have had their cases dismissed, but those are fairly rare -- maybe half a dozen of the tens of thousands cases filed. Although it's a sad truth, the reality is that once you get caught -- really caught -- infringing copyrighted materials, very few people have sympathy for you, least of all the courts. So, take a moment, convince yourself that sharing the entire a-ha back catalog was worth it, and call a lawyer who's handled RIAA cases before to take care of your settlement, which is usually somewhere between three and five thousand dollars. It's by far the cheapest option.

Well, that's great, but I didn't do anything wrong.

In that case, the first thing you should do is check and see what kind of letter you've gotten from the RIAA. Who is it from? If you're a college student, there's a good possibility it's from your school, saying you might be sued. In that case you should STAY AWAY FROM THE RIAA. Don't visit the settlement website, don't call the hotline. The RIAA doesn't know exactly who you are yet, so don't up and go telling them.

Of course they know who I am! I got this letter, didn't I?

The only thing the RIAA knows is that your IP address was sharing files -- that letter was from your school. Every school deals with this differently, but you need to be in touch with the legal department at your school in order to begin clearing this up -- not necessarily the RIAA. Again, don't give the RIAA any more than you need to.

Good for the college kids, but I'm sitting here holding a notice of an actual lawsuit, and I didn't share any files either.

In that case, you need to act right away. Make sure you've got documentation showing what kind of internet service you have, how long you've had it, and what kind of computers you have hooked up to your router. It would also be good to catalog all the music on your machines. Generally this information is all you'll need to give a lawyer to get started on your case -- and although the RIAA is stubborn, they will drop cases once it's obvious that they'll lose, because they are terrified of losing in court. Don't wait one extra second to do this, however -- the longer you hold off, the less likely the RIAA is to dismiss your case, and the less likely it is that you'll get your attorney's fees back if you end up going to court.

Man, this is really depressing.

It is, but the more information you have about this, the better. We're not big fans of the RIAA's scare tactics -- and we're pretty certain those tactics aren't having any effect on filesharing -- but we're not trying to sugarcoat reality, either. Stay safe, stay respectful, and most of all -- know your rights.

Nilay would like to thank Len Rubin of Reed Smith for his help with this article.