It’s official: the RIAA is throwing in the towel on its litigation campaign against filesharers. Wall Street Journal; CNET News. (One footnote: although the “campaign” is over, apparently individual battles will continue against heavy downloaders or uploaders.) This will not come as a surprise to my Internet law students; we spent the last couple of weeks of class discussing the content industry’s options, and the class was nearly unanimous that the lawsuits were unlikely to be effective. The only dissenters from that view opined that maybe the campaign was succeeding as a sort of public service announcement—use only legitimate sites and don’t upload! But as we noted in class, changing individual behavior from the top down is very difficult to pull off. It’s inefficient, in the sense that you aren’t likely to get much bang for your buck.

And indeed, that seems to be what’s behind the decision to end the lawsuits. The RIAA is a trade organization, funded by the member companies. And the member companies are apparently unhappy with the amount that they’ve been ponying up lately in the form of dues. A related report out today indicates that the record labels will be cutting back on their contributions this year.

So now there are two questions to ponder, one for today and one for a later post: first, how much of a success or failure was the litigation campaign? And second, what next?

The battles over both of these questions have begun, and the lobbyists are sharpening their bumper-sticker slogans. Despite attempts to simplify the debate, however, the first question is actually pretty difficult to answer, at least under a modest definition of what would count as “success.” Under an immodest definition, which is the one the RIAA and opponents alike have publicly deployed, the litigation campaign was supposed to end all unauthorized filesharing. By that measure, it’s been a clear failure. But a more modest goal would have been to police unauthorized filesharing, and thus prevent it from becoming as widespread as it would be without such policing. I.e., a more realistic goal for the litigation campaign would view it as a sort of speed-limit enforcement effort.

Speed limits are somewhat like copyright restrictions on unauthorized filesharing—they are both widely regarded as having little moral force. (Why that is is an interesting question; it’s probably due to the fact that the harm of downloading one song, or going one mph faster, is greatly attenuated and thus not at all obvious to the individual driver or downloader.) There are a small number who will follow the formalized rules just because they are rules. You occasionally meet such drivers on the highway, driving 55 mph (or less—it’s a speed limit after all), but they are pretty rare. Much more common are the drivers who are limited primarily by the risk and shame of getting a ticket. But that risk would be nonexistent, and therefore ignored, if there wasn’t a well known campaign of police enforcement of speed limits.

Enter the RIAA. To get a limitation of behavior from fear of enforcement, you have to, well, enforce. So the RIAA began what I think is best characterized as an anti-speeding campaign. Such an effort ideally does three things: it keeps the majority of drivers, who would otherwise go much faster, at least close to the speed limit due to the fear of getting a ticket. Second, it sends a message that breaking the speed limit, at least by a certain amount, is wrong. And third, it penalizes the most inveterate speeders. While there’s some amount of randomness, driving frequently at high speeds raises the likelihood of getting a ticket. To sum up, the benefits are:

1. forced internalization of the anti-speeding norm;
2. promoting unforced internalization of anti-speeding norms;
3. penalties stochastically related to the magnitude of the violation.

There’s a couple of problems with an anti-speeding campaign from the enforcement side, however. First, they need to be run continuously and frequently. Abandoning the effort will immediately eliminate benefit #3 and will after a period of time eliminate #1, and possibly even #2. And second, constant, frequent enforcement is expensive. It sucks police officers away from more important tasks, and record label dollars away from other efforts.

These difficulties ultimately overwhelmed the RIAA’s enforcement effort. For one thing, the ticket-to-speeder ratio was simply much too low. The real police devote probably thousands of officers across the country on any given day to speed limit enforcement. The RIAA was, essentially, one cop attempting to police the entire country. Second, bringing civil lawsuits against defendants known only by their IP address is vastly more complicated and expensive an undertaking than traffic court—and most speeding tickets go uncontested due to the relatively low level of the fines. The fines for copyright infringement, on the other hand, are astronomical ($750 minimum—and that’s per work) compared to the likely harm (at most, loss of a $2 sale on iTunes).

The high minimum damages may be an attempt to compensate for the low probability of getting caught, but that brings me to a third distinction—to achieve benefit #1, and maybe #2, above, there has to be some amount of regularity to the enforcement campaign. If the police in a given jurisdiction stop just one speeder a year and fine them $12,000, and this year it’s you for going 65 in a 55 zone, it would do little to create fear of enforcement, but a lot to create a sense of procedural unfairness. The deterrence would be lost amid the sense that you won an unluckiness lottery. Even bringing hundreds of lawsuits at a time, the RIAA campaign was closer to my one-speeder-per-year hypo than what we currently have in the way of speed limit enforcement.

There’s one other possibility to consider here: the RIAA’s effort was not even an anti-speeding campaign, but was simply a holding action, or even a managed retreat, while other defenses were being constructed. I.e., it was the Thermopylae of the digital age. That is, it achieved some small amount of benefits #1 and #3 above, and perhaps some greater amount of benefit #2 through education, until other enforcement techniques and authorized services could come online. It’s impossible to be confident whether even this limited goal was achieved. The extent of the benefits attained is notoriously difficult to measure. Among other things, we simply have no idea how extensive unauthorized filesharing would have been without the campaign.

And the benefits, whatever they were, have to be offset by the amount of ill will that has been generated against the recording industry in particular. The EFF has long criticized the record labels for “suing their own customers,” a criticism I find dubious at best, and possibly deeply cynical. But it’s beyond doubt that the lawsuits have, at least in some communities, promoted a strong feeling of antipathy toward the RIAA. Nevertheless, it’s a bit difficult to gauge its extent among the general population. The Jammie Thomas verdict, for example, indicates that it is not as widespread as the techie community generally supposes.

The ultimate determinant of history here may simply come down to which side has more compelling anecdotes. And for that, it’s hard to beat the Kafkaesque randomness element of the enforcement effort, combined with the outsized nature of the statutory damages remedy. Anti-label stories of grandmas without computers getting sued for millions of dollars for downloading Ludacris are simply too catchy to fade away. And on the other side, all the labels have to go on is a story about norms, costs-benefits, and probabilities. Good luck selling that.