Not for very much longer. The RIAA's lawyers have just discovered that the U.S. Postal Service is in fact a p2p network. (Not to mention the highway system.)
This could be an attractive case for a contingency fee. The Alliance represents a significant number of webcasters. The damage per webcaster can be determined pursuant to a formula (e.g., songs played * overcharge per song), which means that the case could be tried as a class action. Any damages verdict would then be tripled under the Sherman Act. I'd say, if the case has merits, there should be no shortage of enterpreneurial lawyers to take it on. But what about the merits? I don't know enough about the market to have a feel for the second argument in the letter (monopolization of the sound recording market), but as a general matter, it is tough for a plaintiff to sue for a rate adjustment under the antitrust laws (e.g., based on an essential facilities theory), in particular if the industry is regulated by a rate-setting body. The first argument, "elimination of competition in the small webcasting market," may be a winner, if the Alliance has proof. There is probably no monopolization claim (Section 2 of the Sherman Act) because neither the RIAA/its members nor the VOW webcasters have sufficient market power (70% or more) in that market. (The Alliance concedes that barriers to entry are low.) Thus, the only option that's left is a conspiracy claim under Section 1, e.g., a group boycott (of the VOW members), together with an upstream supplier (the RIAA/members) to deny lower input prices to the VOW/members' competitors in order to drive them from the market. Sounds good, however success depends entirely on whether the Alliance plaintiffs will be able to prove a conspiracy (i.e., an agreement to restrain competition among the VOW members and the Alliance/members). If the Alliance has gotten its hands on smoking gun documents, the RIAA will settle this case in a heartbeat. If it didn't (and if the RIAA is confident that there are no discoverable "bad docs"), the RIAA will fight and the Alliance will have a very hard time getting past summary judgment.
Slashdot Mirror
Not for very much longer. The RIAA's lawyers have just discovered that the U.S. Postal Service is in fact a p2p network. (Not to mention the highway system.)
This could be an attractive case for a contingency fee. The Alliance represents a significant number of webcasters. The damage per webcaster can be determined pursuant to a formula (e.g., songs played * overcharge per song), which means that the case could be tried as a class action. Any damages verdict would then be tripled under the Sherman Act. I'd say, if the case has merits, there should be no shortage of enterpreneurial lawyers to take it on. But what about the merits? I don't know enough about the market to have a feel for the second argument in the letter (monopolization of the sound recording market), but as a general matter, it is tough for a plaintiff to sue for a rate adjustment under the antitrust laws (e.g., based on an essential facilities theory), in particular if the industry is regulated by a rate-setting body. The first argument, "elimination of competition in the small webcasting market," may be a winner, if the Alliance has proof. There is probably no monopolization claim (Section 2 of the Sherman Act) because neither the RIAA/its members nor the VOW webcasters have sufficient market power (70% or more) in that market. (The Alliance concedes that barriers to entry are low.) Thus, the only option that's left is a conspiracy claim under Section 1, e.g., a group boycott (of the VOW members), together with an upstream supplier (the RIAA/members) to deny lower input prices to the VOW/members' competitors in order to drive them from the market. Sounds good, however success depends entirely on whether the Alliance plaintiffs will be able to prove a conspiracy (i.e., an agreement to restrain competition among the VOW members and the Alliance/members). If the Alliance has gotten its hands on smoking gun documents, the RIAA will settle this case in a heartbeat. If it didn't (and if the RIAA is confident that there are no discoverable "bad docs"), the RIAA will fight and the Alliance will have a very hard time getting past summary judgment.