Can the RIAA Truly Give Illegal Distributors "Amnesty"?
And If So, Should They Accept?

On September 8, the Recording Industry Association of America (RIAA) filed lawsuits in courts across the country against 261 individuals. In each suit, the RIAA accuses the individual in question of illegally distributing, through peer-to-peer "file sharing" networks, about 1,000 copyrighted music files.

"Distributing" in this context means that the person has failed to prevent outsiders from gaining access, through the Internet, to the music files on his or her computer. (Downloading involves copying, and it is, therefore, copyright infringement. Distributing, besides being illegal in itself, could also constitute contributory or vicarious copyright infringement.)

Significantly, the RIAA has paired its stick with a carrot: It has suggested it may offer "amnesty" to those illegal distributors who step forward and promise not to repeat their behavior. To get the amnesty, the individual must also sign a notarized form promising to delete illegally downloaded files from their computer, and submit a copy of a photo ID.

After all, these suits are likely to remain in the headlines, and if the RIAA gives up - or even if it fails to file sets of follow-up suits (There are certainly more than 261 "distributors" of downloaded files in America!) - its admission of defeat will be very public indeed.

Furthermore, many of those named in the suits are young students, and other young students, fearing they too may be sued, may want to take advantage of the amnesty before the process server shows up, and their parents' wrath descends upon them. (The fact that the suits have sometimes targeted teens has garnered much media attention - often, a parent may be served with the complaint, because the alleged distribution occurred on the parent's computer.)

On the other hand, there are those "distributors" who will not want to take advantage of the amnesty - perhaps because they do not believe their conduct was illegal; because they fear giving over their photos and names; or because they do not believe the RIAA has the resources to pursue more than a few of them, and are willing to take their chances.

Should the individuals who are threatened with suit settle for the $3,000, or defend their cases? And should those who fear they could be sued in the future take advantage of the amnesty, or hold tight?

Some among both groups may simply want to take a stand of conscience, and refuse. But for those who do not, and are thinking financially or strategically, what factors might they want to consider?

Can the RIAA Actually Offer "Amnesty"? Not Really, But It May Be Close.

First, readers may wonder, Why does the RIAA have the right to offer "amnesty" in the first place? It's not a government, after all. And it's not even the copyright holder for all the downloaded music. So what right does it have to determine who does, and does not, get insulated from copyright suits?

The answer is that the RIAA does have some right to decide this - but its right is a relatively limited one. As an industry association, it may well be granted "standing" - that is, the legal right - to bring a lawsuit against the individuals it claims are illegal distributors. And if it has standing, it has the right to settle any case in which it is the plaintiff, with the defendant it has sued in that case - or to settle, in advance, with anyone against whom it would have a future claim (that is, any "distributor"). But it can only settle its own claim - not the claims of others. So if a person takes advantage of the amnesty, other plaintiffs can still sue the person later, though the RIAA cannot.

By comparison, if the federal government truly offers an illegal alien amnesty, that's the end of the matter: Because immigration is constitutionally a federal concern, the states cannot go after the person. Ideally, an amnesty legally means that it makes it as if the illegal behavior never happened in the first place. But the RIAA can't offer that, because unlike the federal government, it can't speak once and settle things forever.

So the "free" amnesty may turn out to be very costly indeed - for the individual, now literally defenseless, may pay through the nose in a future settlement, or even conceivably face criminal charges. Getting out of the RIAA suit, thus, may mean you've won the battle. But it may also cause you to lose the war.

Indeed, even admitting to the RIAA informally that you've downloaded music is dangerous: An "admission against interest" is a classic hearsay exception, and that kind of admission would certainly count.

Why the "Amnesty" May Be More Protective In Reality, Than In Theory

In sum, the so-called "amnesty" provides much less protection that might at first appear to be the case. But other nonlegal factors may suggest that it might make sense for "distributors" to accept.

For one thing, suing music lovers is not, contrary to appearances, the music industry's favorite thing to do. It threatens to alienate not only the defendant, but his classmates (if it's a college or high school student), his friends, and indeed, his entire generation.

(After all, the RIAA is not offering amnesty out of the kindness of its heart. It's doubtless offering it to try to mend fences with Generation Y, which has been angry for quite a while about the absence of affordable music, and the absence - until recently - of legally downloadable music.)

Moreover, other potential plaintiffs will also belong to the music industry, and they may very well have the same public relations-related fears. Thus, the amnesty offered by the RIAA may not leave the person who agrees to it quite as wide open to subsequent suits as the law technically would suggest.

Also, while suing young music lovers has a large public relations cost, suing young music lovers who were led to believe - by an industry association - that they benefited from an "amnesty" will have an even bigger public relations cost. And juries would be unlikely to convict those who believed, even erroneously, that the "amnesty" offered by the RIAA was exactly what it claimed to be.

Prosecuting young music lovers won't exactly be popular either, and may well be considered a waste of prosecutorial time and resources.

Suppose that, having considered all these arguments, as well as the counsel of a knowledgeable lawyer she has retained, a music lover decides to fight her case out in court. Might she actually win her suit? It's possible, but not likely. However, there are some arguments she can try.

One is the standing argument I mentioned above: Shouldn't the copyright holders themselves be suing, not the RIAA? Keep in mind, however, that industry associations have succeeded in asserting standing even when other plaintiffs would have been more appropriate, and that might well happen here.

Another might be the argument disputing whether a downloader's merely leaving MP3 files on her computer so that someone else can upload them from there, is truly "distribution." It seems an awfully passive act to count as distribution. (While this argument might be worth making, it probably won't win the case: Remember, illegal downloading copyright infringement claims can still continue even if distribution claims are defeated, and it seems likely that the vast majority of "distributors" are also illegal downloaders.)

Another argument that could be made is that the RIAA cannot prove that an accused music lover actually did the downloading and distributing. However, if she actually was the distributor (and I'm assuming, here, that she was), then this argument is a huge mistake; for to even have a chance of prevailing in her defense, she would have to commit perjury by lying under oath at a deposition.

Moreover, this is one perjury case that might actually be brought and if brought, might be provable: With subpoenaed third-party records, an impounded computer, and other evidence, proof beyond a reasonable doubt would be far from impossible.

Finally, unlike in the case of file sharing itself, there's no argument about whether lying under oath is, or should be, illegal: It is. Very illegal.

Might a Court Somewhere Deem File Sharing Legal?

That point brings us to a final, fundamental question: Could the alleged distributor actually convince a court that what she did was legal, and that therefore the case should be dismissed?

That's very, very unlikely. For one thing, the Napster decisions made very clear that file sharing is copyright infringement. If so, then acting as "distributors" by allowing others to access your files may, as noted above, be contributory or vicarious copyright infringement. And, in any event, distributing copyrighted material without a license from the copyright holder is illegal in itself.

These reasons might derive in part from the fact that music prices seem pretty high, given that online distribution is virtually free. There are also the longstanding, never-prosecuted practices such as swapping "mix" tapes, or taping a CD for a friend to use at the gym. (Though seemingly perfectly legal, they often were, technically, copyright infringements.)

There are many ethical, cultural and societal arguments why file sharing ought to be legal. But there are not very many strong arguments, that in fact, it is legal. As a result, those who have found themselves the target of RIAA suits - and those who are deciding whether to accept amnesty - cannot count on a court's accepting any argument to this effect.

Julie Hilden, a FindLaw columnist, practiced First Amendment law at the D.C. law firm of Williams & Connolly from 1996-99