I’m currently attending a talk by Wendy Seltzer — law prof at Northeastern / fellow at Berkman / participant at EFF / smart blogger on law plus — and she’s talking about the role that universities are and should play in the RIAA strategy of sending to universities letters indicating that someone at such IP address was allegedly infringing copyright (usually trading music on a peer-to-peer network), and offering a settlement that would help avoid an actual subpoena and potential lawsuit. The specific question, as I see it, is that the university could forward those letters to the student, which informs them and gives them options but could be perceived as doing the handiwork of the RIAA, or not forwarding it, which argues it is not their place but leaves the student unaware that they may be about to be sued. It strikes me that the particularly egregious part of the pre-settlement strategy is that it even gets around the basic legal processes of getting a subpoena, which requires at least basic evidence that the infringing occurred.

So while my initial gut says that the university should pass these along, so students know what’s happening, though I think I would like the university to be working against this strategy in other ways. But I don’t like that it appears to legitimate the strategy. I would like to stop the pre-settlement model altogether, and make it necessary to go through the more official legal due process — in part because these I wish these cases would come before courts more than they have, in case there is a legal question about the validity of calling file-trading infringement (and the RIAA is generally fearful of having these cases come before a court or jury, for precisely this reason).

Then a question posed pointed out that the statutory damages in copyright are egregiously high, in part because when they were written they were imagining not digital piracy by millions of ordinary users but commercial, large-scale piracy that preceded it. So many the damages should be lowered, making the lawsuit approach less desirable. But it strikes me that these are opposite — high damages might lead the RIAA to want to go to court, not to settle; settling is a way to ensure the decision goes there way (because there is none) but gets them less. It seems to me that the RIAA prefers the pre-settlement approach precisely to avoid the costs and risks of legal adjudication.

So, what if we (as universities?) lobbied for lower statutory damages (when the infringement is not commercial and large-scale), and also said we would not pass along pre-settlement letters, the argument being that we are opposed to the pre-settlement process as a way to avoid having these allegations abide by due process and come before the courts, and that the legal penalties need to be reasonable based on who’s doing what… and then, if both of these changes happened, we could be more supportive of the lawsuit strategy, if the RIAA still wants to pursue it, as it is being done above the board legally and its punitive regimen is not egregious.