The challenge, legal experts say, is finding unsympathetic defendants who stand little chance of galvanising broad public protest against the actions of the record labels -- industry giants that are facing twin revolts from consumers over the high price of CDs, and artists complaining about unfair contracts. Jennison thinks the RIAA will target people in their late 20s or early 30s who are making available massive numbers of files that are current and popular. The RIAA may also look for people who could otherwise afford to buy CDs but instead choose to play the free-swapping game, she speculated. Others suggest that the industry would pursue, as University of Wisconsin's Vaidhyanathan called them, "hacker types", or people who look like they might spell trouble to mainstream Americans. Already, similar tactics have been put in play by the movie industry, which successfully convinced several judges that the operators of hacker publication 2600 aided copyright infringement by providing links to code that could be used to crack copyright protections on DVDs. The record industry also could lean on law enforcement to do its dirty work for it, said P.J. McNealy, a research director at Gartner. "One of the problems with file-sharing right now is consumers aren't afraid of police knocking in doors and seizing computers," he said. However, criminal copyright charges, which usually must involve monetary losses or an intent to make money, often are hard to prove in cases involving individuals. Nevertheless, the Business Software Alliance (BSA), a trade group that represents major software owners including Microsoft, has worked successfully with law enforcement to crack down on copyright infringement in the software arena -- including a sting operation that resulted in jail time for several members of the DrinkOrDie software piracy ring. The RIAA has said it wants to model its efforts after the BSA's. Record executives are split on whether individual lawsuits are a good idea, insiders say. No decision has been made one way or the other. But the idea is under consideration. "Music sales over the past year have slumped, and the industry is looking at a variety of tactics to tackle online piracy," one industry executive said. Cutting the wires
Typically the labels, like other copyright holders, have pursued individuals alleged to be involved in online piracy though their Internet service providers. ISPs have received hundreds of letters from labels, studios and other copyright holders over the past year, asking that subscribers offering large amounts of copyrighted material be stopped. Similar tactics were used against individuals who used different types of technology, such as FTP sites or Internet Relay Chat (IRC) to trade files. The RIAA has sued individuals operating pirate FTP sites in the past, the organisation said. Most industry watchers think entertainment companies are going to go after just a few defendants in an effort to show they're serious about stopping unauthorised trading of music files and trumpet the cases very publicly. The effort could be more than just a publicity stunt, however. A study of Gnutella users by Xerox's Palo Alto Research Center found that about 10 percent of network users provide 90 percent of the material available on some peer-to-peer networks. What's more, the Motion Picture Association of America said it's seen a 45 percent drop-off in the number of sites offering pirated music since the DrinkOrDie operation began. In a sense, the sue-the-user tactic is one that supporters of Napster and other file-swapping services have pointed to as an alternative to suing companies all along. During cases filed against Napster, Scour, Morpheus and others, supporters of those services have argued that the technology itself is neutral -- after all, you wouldn't expect a copyright holder to go after Xerox for providing the copying machine on which documents were illegally duplicated. Judges, however, have disagreed, saying, for example in the Napster case, that the company intended to profit from the file-swapping and was designed primarily to allow swapping of copyrighted works. Even Fred von Lohmann, an attorney for the Electronic Frontier Foundation, which has aided in the defense of many tech companies accused of copyright infringement, said he's hard-pressed to come up with a defense under current law for someone who copies millions of files and then makes them available, without permission, to the world via the Internet. However, he's hoping cases involving individuals could spark debate over the laws themselves. "Then I think we can really start having a national discussion about whether copyright law has gotten out of sync with people's expectations," he said. News.com's John Borland contributed to this report.
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