OK Fred, then what exactly IS the answer to the P2P dilemma? Because you don’t favor individual lawsuits, you don’t favor P2P liability, or much of anything else. This is what infuriates me most about the Lessig-ites; they give lip service to the P2P problem but then lambaste each and every legal solution proposed. In my opinion, if you can’t even support the lawsuits against individual users, then you essentially don’t believe in ANY sort of copyright enforcement.
People who don’t like the RIAA’s litigous agenda need to come up with a workable alternative. Too many people on the anti-RIAA side like to criticize every attempt to enforce current copyright laws without suggesting alternative enforcement mechanisms, and without proposing an alternative legal regime. I’m not comfortable with simply shrugging at wide-spread piracy and telling the RIAA to lower their prices and stop whining.
I do, however, have two caveats. First, I think the EFF’s report does highlight some abuses. Getting sued by a deep-pocketed corporation is an extremely intimidating experience, and it’s probably true that some of the RIAA’s targets were wrongly accused. So we should all be thinking about the legal balance that’s created between the RIAA and accused file-sharers. It might be that a legal regime designed to go after commercial pirates is too heavy-handed to deal with individual file sharers.
Secondly, I think the EFF might be right on the empirical question: that in the long run, these kinds of lawsuits aren’t going to prevent widespread use of P2P software. That doesn’t make piracy OK, and it doesn’t mean the RIAA should stop suing people, but it does mean that they should be thinking hard about what they’ll do if, a decade and 100,000 lawsuits from now, they find that peer-to-peer software is more popular than ever. It might be that there just isn’t any way to stop piracy short of shutting down the Internet. If that’s true, then at some point laws are going to have to change to reflect that reality. It would clearly be a bad idea to have a law that’s universally ignored. But I have no particular insights about what the new legal regime ought to look like.