is the RIAA killing chickens to scare monkeys?

Since when has the RIAA turned to tactics the Chinese government often employs in their fight against internet censorship? Since for some time, Charles Nesson might argue in the most recent case he is taking on.

Professor Charles Nesson is defending Boston University graduate student Joel Tenenbaum against the RIAA. The RIAA is suing Tenenbaum for illegally downloading a few songs many years ago. This is how it usually goes: People get a scary letter from the RIAA saying they have been downloading songs illegally and are going to sue them in an expensive lawsuit; people often settle for a few thousand bucks to get the RIAA and their formidable litigation team off their back. This is a tactic that they have been effectively using against many people. What is the point of this? According to Nesson:

“The plaintiffs and the RIAA are seeking to punish [Joel Tenenbaum] beyond any rational measure of the damage he allegedly caused. They do this, not for the purpose of recovering compensation for actual damage caused by Joel’s individual action, nor for the primary purpose of deterring him from further copyright infringement, but for the ulterior purpose of creating an urban legend so frightening to children using computers, and so frightening to parents and teachers of students using computers, that they will somehow reverse the tide of the digital future.”

The part where Professor Nesson is arguing that these actions are neither to recover compensation nor to deter the person from future copyright infringement, but rather that their purpose is to send a signal to frighten everybody else: we will find you if you dare to download even a few songs illegally.

In writing a paper on Chinese internet control and censorship a few years ago, I often came across a Chinese proverb that would describe tactics like this. “Killing the chicken to scare the monkeys” (殺雞警猴) is a Chinese saying that illustrates how setting an example can be a very effective way of scaring people and deterring behavior you find undesirable. It was a particular powerful way of illustrating how a few well-placed and properly timed, not to mention highly publicized arrests, of dissidents would let the Chinese online population know that they were being watched and that those who would use the internet for “undesirable” purposes would have a less than desirable fate. Analogous, what Nesson is saying is that what is happening right now to Joel Tenenbaum is the RIAA way of resorting to the age-old “killing the chicken, to scare the monkeys” tactic.

We can debate about whether downloading songs from peer to peer networks should be illegal or not, especially when millions of kids do this, whether the music model is just broken, or whether this is really the only way to protect future innovation and creation of music. Let’s accept that it is illegal for now. Professor Nesson is not arguing that downloading songs should not be illegal – his argument really is that this should not be criminal. If downloading a song would be like speeding, this is how the current system would compare:

• a $750 fine for every mile over the speed limit, escalating to $150,000 per mile if the speeder knew he was speeding;
• the fines are not publicized and few drivers know they exist;
• enforcement not by the government but by a private police force that keeps the fines for itself

Professor Nesson furthermore argues that a system like this

• has no political accountability
• can pursue any defendant it chooses at its own whim
• can accept or reject payoffs in exchange for not prosecuting the tickets, and pockets for itself all payoffs and fines. Imagine that a significant percentage of these fines were never contested, regardless of whether they had merit, because the individuals being fined have limited financial resources and little idea of whether they can prevail in front of an objective judicial body.

I wonder how the relatively young legal system in China would compare to the system as perfected by the RIAA?

If you want to read more, the case has been getting some amazing amount of press so far.