Ray Beckerman is a commercial litigator and internet law attorney who has represented defendants that the Recording Industry Association of America (RIAA) has accused of music file sharing in copyright infringement lawsuits in the United States. Beckerman is an outspoken critic against the RIAA and recording companies EMI, SONY BMG, Warner Brothers, and affiliates’ five-year lawsuit campaign against alleged illegal file sharers. He attacks the legalities of the RIAA’s lawsuits in “Large Recording Companies v. The Defenceless: Some Common Sense Solutions to the Challenges of the RIAA Litigations” published last summer in The Judge’s Journal. Beckerman also publishes a popular blog, “Recording Industry vs. The People”, which tracks the RIAA’s litigation campaign. Intellectual Property Watch contributor Bruce Gain recently sat down with Beckerman in New York.

INTELLECTUAL PROPERTY WATCH [IPW]: So, in a few sentences, what is the state of the RIAA’s litigation campaign?

RAY BECKERMAN: The RIAA litigation has switched its focus from users of commercial internet providers to colleges and universities. I believe the tide has turned in those cases, because I believe the courts in the United States were caught off guard by this onslaught. They saw large sets of papers from big law firms and a lot of impressive techno-speak. They didn’t understand how phoney these litigations were. Technology buffs do see it right away. But judges are mostly not technology buffs. So many of them signed orders and things that they should not have signed.

There was nobody there fighting back so they didn’t have anybody else in the courtroom to tell them otherwise. What’s happened is that during the past three years more and more people have been starting to fight back. More and more lawyers have been coming into it. Information has been becoming more available as to what is going on in these cases. And judges are starting to get wise to it.

We’re seeing a rebellion by many of the judges. The most striking example was that the one trial victory the RIAA had in Duluth, Minnesota, was based on a major flaw in the jury instructions, which instructed the jury the opposite of what the law actually is [by awarding damages of $222,000 for 24 song files]. By my calculations, that is 23,000 times the actual damages. The jury was like a runaway jury and they were confused.

“We’re seeing a rebellion by many of the judges.”Part of the confusion came about from the jury instructions. The judge had actually given a correct jury instruction. But then the RIAA objected to it, and then they had an oral argument starting at 8:00 am the day the case was turned over to the jury, and they convinced the judge to change his mind, which was a big mistake, because the judge should make those kinds of decisions before the trial, should have time to research the question, and should have had his assistants look at the case law, the statutes, and the treatises. Instead, while he made the correct decision initially, he changed his mind due to the fact that the RIAA’s smooth talking attorney convinced him that he was wrong.

“I think there is going to be a golden age of music.”The defendant’s attorney was a local guy that didn’t even want to be there. He had taken the case on the condition that he would be paid, and the defendant didn’t pay him, so he made a motion to be out of the case, but the judge would not let him. The judge forced him to do the trial against his will. It colours everything that happened because he didn’t put up the kind of defence that he should have put up. He didn’t tell the judge that there was an appeal court’s case, which was binding on the judge, which directly contradicted the RIAA’s instruction. The RIAA lawyer was under obligation to tell the judge about that, but they didn’t either. So the judge gave the wrong instruction; the jury came back with the wrong verdict; and about eight months later, the judge came to the realisation that he had committed a manifest error of law by giving that jury instruction, and he mentioned in his decision that neither lawyer had told him about it.

IPW: What is the outlook for the music industry?

BECKERMAN: I think there is going to be a golden age of music. You are going to see more and more artists able to make a living from what they do. You may see fewer superstars and platinum albums, but you are going to see a better music industry. My guess is that these companies [such as EMI, SONY BMG, and Warner Brothers] 10 years ago represented 90 percent of the recording business. My guess is that they now represent 70 percent and that will keep on going down.

IPW: What is going on with video file sharing? What parallels exist with the music industry?

BECKERMAN: I think the Motion Picture Association of America (MPAA) is in a similar dance with death. They are frantically trying to sue anybody who is doing anything creatively, such as YouTube. Probably, as their share prices go down, they will be easier and easier to take over. So what I think you will see happening is eventually that the companies they are suing will buy them up one day. And that will be the end of the lawsuits.

IPW: Outside of the litigation sphere, will the lawsuits eventually trickle to a stop? What will happen three to five years from now?

BECKERMAN: I don’t know when, but I do believe it will end. I have a hunch it will be soon. But whether it will be the courts that will shut it down or when Chapter 11 shuts it down, I don’t which will come first. I have a hunch, knowing how slow the courts work that the business world will take care of it sooner than the courts will.

IPW: You don’t see legislators stepping in and creating laws that will protect consumers against litigation?

BECKERMAN: I don’t see that happening. I don’t know why it is not happening. Maybe it has to do with large contributions from these big companies. I know the record companies have greatly increased the money they have spent on lobbying.

IPW: The issue is that you have all of this media, whether they are books, films, or music, which is so easy to copy and distribute digitally. So how do artists get paid?

“I would like to see governments everywhere remembering whom they are supposed to serve, which is the people. It is really only 10 corporations that are doing this whole thing.”BECKERMAN: I think most people want to buy first-class copies and they want to pay a reasonable price for things and they like to buy it directly knowing that the money goes directly into the artists’ pockets. I don’t think you are just going to see copies without paying. I think you are going to see people making money from it. People will have to build good will. More and more you will see direct marketing online by a responsible middlemen who are looking for most of the money to go to the artist and are looking for just a small percentage of the transaction for commerce. And every day I see innovative ways of doing these things. And other new and interesting things are going to happen.

IPW: In Europe, the UK and French governments are beginning to allow record companies to monitor uploading traffic, match names to IP addresses, and have letters sent to alleged illegal file sharers. Is that a possible solution?

“[T]he Motion Picture Association of America (MPAA) is in a similar dance with death.”BECKERMAN: I would like to see governments everywhere remembering whom they are supposed to serve, which is the people. It is really only 10 corporations that are doing this whole thing. These giant companies are running the whole thing. You will never see any smaller companies or any other companies involved. The 10 corporations are trying to take over the world. And I think it is very important for countries in Europe to be careful not to let themselves be used this way. I was pleased to see that the Netherlands court actually looked at the investigation and realised that it was phoney and there wasn’t proper evidence when they refused to let the ISPs divulge customer information.

In Germany, the record companies were improperly using the criminal justice system as a means of extracting information about whom to sue. They were using it for monetary purposes. And that was shut down. I would like to see all of the governments of Europe stop serving these 10 corporations.

In the United States it is really up to the judges to shut it down, and they are really starting to do that.

IPW: Thank you.

Bruce Gain may be reached at info@ip-watch.ch.