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Questions about New York State Attorney General agreement with record labels

By Ty Rogers and Ray Beckerman

On December 19th it was announced by the Wall Street Journal that the New York State Attorney General had brokered some sort of tentative agreements between the 4 major record companies and the internet service providers and that because of this they were no longer going to sue end users except for large uploaders.

Thereafter:

-the part of the announcement which stated that the RIAA had stopped bringing mass litigations in early Fall was shown to be false;

-IP Watch was unable to get confirmation of any agreements with ISP's;

-Digital Music News was unable to get confirmation of any agreements with ISP's and I indicated my curiosity about the AG's involvement:

I am also waiting to see what confirmation journalists will be able to obtain regarding
(1) the alleged involvement of the New York State Attorney General in brokering the phantom agreements,
(2) what New York law(s) the AG was enforcing,
(3) what violation(s) of New York law the AG was investigating, and
(4) what kind of agreement the AG made with the record companies.

Well the more I think about it the more questions I have about the New York State Attorney General's involvement.

Couldn't this AG involvement be viewed as a device to give the trappings of antitrust immunity to an industry-wide agreement, or an agreement between two (2) industries?

Think about the tobacco master settlement. There, the tobacco industry used state AG involvement and the pendency of lawsuits to create a highly restrained system of competition. But for the involvement of public officials and the litigation settlement, the industry itself could not collectively have imposed this system of restraints.

The music labels, however, aren't litigating against ISPs. And the people they are litigating against -- the defendants in the RIAA cases -- were not invited to participate in these back room discussions.

The Wall Street Journal article said:

Over the summer, New York State Attorney General Andrew Cuomo began brokering an agreement between the recording industry and the ISPs that would address both sides' piracy concerns. "We wanted to end the litigation," said Steven Cohen, Mr. Cuomo's chief of staff. "It's not helpful."

As the RIAA worked to cut deals with individual ISPs, Mr. Cuomo's office started working on a broader plan under which major ISPs would agree to work to prevent illegal file-sharing.

If Mr. Cuomo's office was representing 'the people' -- i.e. the people victimized by "the litigation" -- why did he never consult with any of them, and why did he not get the existing lawsuits dropped, and why did he not get assurance that no more lawsuits would be brought? How can they talk about "both sides" when the side with the most at stake -- the side being sued -- wasn't even invited to the discussion?

So what was the legal basis for the NYS Attorney General involvement in this coordinated agreement among 4 competitors, and 2 separate industries?

-R.B.

Commentary & discussion:

p2pnet.net

Keywords: lawyer digital copyright law online internet law legal download upload peer to peer p2p file sharing filesharing music movies indie independent label freeculture creative commons pop/rock artists riaa independent mp3 cd favorite songs intellectual property portable music player

Full post as published by Recording Industry vs The People on January 01, 2009 (boomark / email).