American Bar Association cautions against file sharing lawsuits

downloadThe American Bar Association is urging its 400,000-lawyer membership to be more prudent and show restraint when it comes to lodging online file sharing lawsuits.

In a detailed whitepaper advising the US Government on how to best tackle online piracy, the association writes [PDF]: “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 conclusion the paper suggests to institute SOPA-like anti-piracy measures, including injunctions against companies that host servers with copyright infringing material. In an interesting turnaround, the association says that lawsuits against individual file-sharers are ineffective and counterproductive as a whole.

The Intellectual Property Law division of the group noted as Exhibit A the litigation campaigns of the RIAA (Recording Industry Association of America) and MPAA (Motion Picture Association of America).

This 113-page memo has been largely overlooked in the press. TorrentFreak was the first site to discover its existence. The ABA says that filing of lawsuits against individuals has been proven ineffective in the past and it is unlikely to curb piracy rates.

For instance, the Recording Industry of America (“RIAA”) initiated a campaign several years ago against consumers who engaged in illegal file sharing of copyrighted music. During that time, the RIAA initiated lawsuits against over 18,000 individual users, most of whom paid a few hundred dollars in settlements to avoid the potential for statutory damages of $150,000 per infringing use. More recently, the RIAA has abandoned its former policy of directly bringing cases against consumers in favor of expanding its focus on educating the consuming public about avoiding piracy. The Motion Picture Association of America (“MPAA”) followed in the RIAA’s footsteps with its own set of lawsuits directed against consumers who engaged in the illegal file sharing of copyrighted films and other video, though on a vastly smaller scale. It, too, later abandoned this approach.


With this said, the more preferable course of action seems to be in enacting legislation that targets infringing websites such as the torrent tracker, The Pirate Bay. Since its hard to prosecute site owners outside the US, a more indirect approach is suggested. Legislation that is aimed at cutting off funding, advertising and halting funds through cooperation of banks and payment processors. The whitepaper also calls for legislation that would allow injunction against hosting companies that store the websites on their servers. Interestingly enough, the association could not reach a consensus on doing the same for domain registrars and search engines.

Much of the suggestions have been previously included in the oft-criticized SOPA and PIPA bills.