Ethics Week 2

Read: Chapter 4, sections 1-3
    4.1: intro
    4.2: law, major cases
    4.3: DRM, DMCA, arguments about copying



Normative ethics v descriptive ethics
Deontology v consequentialism
Relativism
Application of this to music and movie file sharing.
Copyright law
    
Michael Eisner's June 2000 statement to Congress (edited, from Halbert & Ingulli 2004). See also below.


Who is copyright for?

Last week we reached the following question: who are music copyrights for?  Here are the options:
Despite the apparently clear distinction between fundamental duty and pragmatism here, it can be hard to tell.

It might help to think of how we would feel if some relatively minor component of music copyright -- sheet-music sales, for example, or the playing of prerecorded music at non-profit events -- were to be deleted from copyright coverage. Such an action would surely not endanger the music industry as a whole, so if we object, it is more likely that we feel musicians are entitled to the fruits of their labor.


DEscriptive ethics: what do people actually do
    compare sociology, etc
Normative ethics, or PREscriptive ethics: what should we do? (sometimes the phrase PROscriptive ethics is used to describe what we should not do).

    -- "if seven million people are stealing, they aren't stealing"
    -- is it ok to download music?

There is also the issue of what we should hold wrong in others. At the severest level, this leads to some actions being illegal. At a more moderate level, there are many actions that we find unacceptable in others, but our response is limited to publicizing the action or ostracism.


The literature on ethics is filled with what are sometimes called "ethical paradoxes":

The Trolley Problem (http://en.wikipedia.org/wiki/Trolley_problem)

A trolley is running out of control down a track. In its path are 5 people who have been tied to the track. Fortunately, you can flip a switch, which will lead the trolley down a different track to safety. Unfortunately, there is a single person tied to that track. Should you flip the switch?

The Cave Problem
A large person is stuck in the mouth of a cave. His five smaller companions are behind him, inside the cave. The tide is coming in, and will shortly drown them all. The stuck person could be removed if he were killed.

Some more (many superficial) examples can be found at http://www.quose.com.

The Trolley and Cave problems seem grimly remote from ordinary experience. File-sharing, however, is not, hence makes a more everyday example.


Ethical theory

(often inseparable from Political & Justice theories)

Deontological ethics: (deon = duty)
Based on the enumeration of fundamental, universal principles.

Immanuel Kant [1724-1804]
Kant's categorical imperative: all our principles should be Universal; that is, if it's ok for us, personally, then it must be ok for everyone. Also, whatever it is must be ok in all contexts, not just selecively (that is, rules apply universally to people and universally to acts). We are to choose ethical principles based on this idea of universality.

This is close to, but not the same as, the Golden Rule: "do unto others as you would have them do unto you [Matthew 7:12]" [NB: is the Bible in the public domain?]; outcome might be the same, but the Golden Rule doesn't have the explicit notion of universality.

Kant also said that people should not be treated as means to other goals; they should be the "endpoints" of moral action. Kant also famously claimed the two principles (universal and non-means) were THE SAME.

Kant is often regarded as a Moral Absolutist, a stronger position than deontology necessarily requires.

WD Ross [1877-1971]:
more modern deontologist
    consequentialism is wrong; Ross identified "seven duties" we have to each other:
  1. fidelity [not lying, keeping promises]
  2. reparation [making up for accidental harm to others]
  3. gratitude
  4. non-injury [do no intentional harm others; includes harming their happiness]
  5. justice [or prevention of harm by others?];
  6. beneficence [do good to others. How much good?]
  7. self-improvement [perhaps "taking care of oneself"]
Is this list complete?

But perhaps the biggest problem for deontologists is what do we do when rules conflict?

Abortion: duty to mother v duty to fetus
This would be the issue facing someone trying to use ethics to decide whether to support or oppose a law banning abortion.

Copyright: duty to copyright-holder v duty to society
But the rights of the copyright holder and the rights of society are largely not in conflict!
   
What about one's personal duty, when faced with the choice of downloading music?

Consequentialist ethics

Jeremy Bentham 1749-1832 & John Stuart Mill [1806-1873]:
Consequentialism (Utilitarianism): the good is that which brings benefit to the people (greatest good for greatest number). This is also sometimes referred to as the "greatest-happiness principle". Another way to look at it is that it calls us to weigh benefits against harms. Bentham's original formulation called for maximizing "pleasure" and minimizing "pain", for society as a whole.

[Bentham apparently believed it was not ok to HARM a minority to benefit the majority, though this has always been an issue
with Consequentialism. One approach to this problem is to weigh HARM much more heavily than BENEFIT, but what if the HARM is just to one person? More on that below.]

Bentham developed an entire legal code based on his theories.

Bentham's version had a problem with justice: is it ok to take the factory from the owner? (That scenario remains a central obstacle for consequentialism.)

Mill wrote a book, Utilitarianism. He was much less flat-consequentialist than Bentham. Bentham thought all forms of pleasure were comparable; Mill felt some were "better" than others. Mill also recast the idea as maximizing happiness rather than "pleasure".


Social Contract; Locke, Jean-Jacques Rousseau
We make rules to move from the State of Nature to Civilization. That is, we agree to social/ethical rules due to their CONSEQUENCES, because we WANT those consequences.

Law and the Social Contract
Ethics and the Social Contract: Ethics are in our long-term self-interest? (Under the social contract)

The idea is that if we lie, or cheat or steal, then eventually our reputation will precede us, and we will end up losing.

Problem: this theory works better for some scenarios than others.


John Rawls [1921-2002]: In negotiating the Social Contract, everyone must be placed behind the VEIL OF IGNORANCE, not knowing whether they would be strong or weak, rich or poor, healthy or sick. (This is often interpreted as "decide on society before you were born") They would then choose what world they wanted to live in. What ethical & legal rules do you want in place? [Usually thought of as a theory of justice, not ethics, but these are actually pretty closely related.]

How do you think Rawls would vote on health-care reform?

How do you think Rawls would choose between capitalism and socialism?


More on consequentialism

zero-sum consequentialism: The idea is that, notionally, we score everyone's benefit or damage numerically, and add them all up. The foremost problem with this approach is that it accepts solutions in which one person suffers greatly, but which produces a modest rise in the fortunes of everyone else. Ursula LeGuin wrote a short science-fiction story on this theme: "the ones who walk away from Omelas." This is also a theme of William James in his essay The Moral Philosopher and the Moral Life.  Look up "omelas" on Wikipedia to find James' quote and a link to the full essay; the quote itself follows.
   
Or if the hypothesis were offered us of a world in which Messrs. Fourier's and Bellamy's and Morris's utopias should all be outdone, and millions kept permanently happy on the one simple condition that a certain lost soul on the far-off edge of things should lead a life of lonely torture, what except a specifical and independent sort of emotion can it be which would make us immediately feel, even though an impulse arose within us to clutch at the happiness so offered, how hideous a thing would be its enjoyment when deliberately accepted as the fruit of such a bargain? - William James

min/max consequentialism: goal is to choose actions that minimize the harm to those affected most (to minimize the worst case, ie to minimize the maximum). Example: taxes; everyone pays a share and social progress is thereby funded.
 
disinterested-person consequentialism:  To decide for or against a rule using consequentialist reasoning, you must be a disinterested party: you must NOT stand to gain personally in any significant way. How does this shift our perspective in the copyright debate?

act consequentialism: consider consequences of each individual act separately. Some lies may thus be permissible while others may not be. The same would apply to music downloading: music from some bands might be fair game. But how do you decide?

rule consequentialism: use consequences of hypothetical actions to formulate broad rules. For example, we ask if we are better off tolerating lying or not; we might then arrive at the broad conclusion that lying is not helpful to society, and we would apply it in every case. Rule consequentialism generally fares better under critical analysis than act consequentialism, but there is a difficulty with how broadly the rules should be interpreted. Is your rule that "lying is always wrong"? Or is it that "lying when someone will be hurt is wrong"? Or "lying is wrong even if no one is hurt, if by lying I gain something I would not otherwise receive"??

"the ends justify the means" This position is based on the consequentialist argument that sometimes it's ok to lie (the means), because in those special cases (eg not hurting people's feelings, protecting the innocent) the ends are clearly an overall good. However, in general consequentialism requires us to take into consideration the full consequences of the means (as well as the ends), in which case harsh or inappropriate means might be discarded as unacceptable.
    
Famous examples:

Compare justifications of lying
    Utilitarian: may be ok in some cases
        Act Utilitarianism: very case-by-case:
            Lying to Joe during the job interview: WRONG
            Lying to Bob about our having borrowed his car: maybe
            Lying to Mary about where we were last saturday: sure!
        Rule Utilitarianism: by category
            "Lying to friends" may be a category that is always wrong.
            Or should the category be "Lying to Anyone"?
        
    Deontological theories: Lying Is Wrong. Always. Even to save refugees from the Nazis.
    Kant: no moral issue should EVER be decided on a case-by-case basis
    
Compare approaches to criminal punishment
    Utilitarian: pragmatic; jail is for rehabilitation
    Deontological: jail is for punishment

Which approach do we take in current societal discourse?


"Natural right to property" is mostly a deontological notion: Locke's idea that people had a natural right to the product of their work did not have societal economic benefits as its justification. However, it is rather easy to defend property rights with a consequentialist argument.

Constitutional language re copyright is CLEARLY focused on overall benefit to society (utilitarian)

Most laws are largely utilitarian. Note, though, that some aspects of free speech / freedom of religion make these out to be "fundamental rights" in a deontological sense.


Some alternatives and special cases

Aretaic Ethics: from greek "Arete", virtue or excellence

Important thing is not duties or consequences but one's character. If you have the right character, you will be led to ethical action naturally. [Not mentioned in Baase]

Rights Theory

We all have certain inalienable rights, and the goal of ethics should be to preserve these. Note that this is different from duties. Locke's "natural rights" comes from this perspective. Rights-theory ethics says, basically, that ethics is about respecting other peoples rights. Do other people have a right not to be misled?


Liberties and claim rights: (Baase)
Liberties (sometimes called negative rights) are rights "to act without interference"; others SHOULD NOT interfere with these. Examples:
Claim rights (positive rights): rest of us have to take measures to ENABLE your right.
Sometimes these are in conflict. Claim rights put an obligation on the rest of us to GIVE UP something, likely something to which we have a liberty-right.

Rights-theory ethics is probably more commonly about liberties than claim rights, but both are involved. Note that with liberties, our ethical obligations are to preserve the liberty-rights of others.


Basis for Property rights

John Locke [Baase, p 33]: Is copyright a PROPERTY right?
    
"Natural" rights: special case of liberties (negative rights), like life & liberty. These are fundamental obligations we have to one another.
    
"Utilitarian" rights: rights that we grant each other for improved social function; NOT necessarily the same as claim rights
    
The Constitution places IP in the latter category.


Religion

How does religion figure into ethics?
There has been a surprising amount of theological debate about whether even God is subject to moral law.

Another theological issue is whether having religious rules takes away our "right" or obligation to make moral decisions.

10 commandments: very deontological. They are fundamental duties, and they are expressed as universals.

613 Mitzvot of the Torah: some of these are less universal (though that is clearly not their point).

Golden Rule [Matthew 7:12]:
     "do unto others as you would have them do unto you"

See also "though shalt love thy neighbor as thyself" [Leviticus 19:18]

This is closer to consequentialist than to deontological, but still different. It does identify a duty in how we treat others, but any actual details of how we are to carry out this duty are grounded in pragmatism: how we would feel if our action were to be applied to us.


Some people call the golden rule "reciprocity ethics". However, arguably the rule's real meaning is as a way of understanding how to treat others, even if they do not reciprocate.

The Golden Rule is closely associated with Jesus, but the Jewish scholar Hillel the Elder, supposedly born 110 BC but also supposedly overlapping with Jesus, gave the following as the core teaching of the Torah:

    That which is hateful to you, do not do to your fellow.

Hillel probably said this sometime between 30 BC and 10 AD; a similar formulation appears in the noncanonical biblical books Tobit and Sirach.  This is similar to the Golden Rule; however, note that Hillel's formulation is more like

    "do not do unto others what you would not have them do unto you"

This formulation is sometimes referred to as the Silver Rule.

The prophet Muhammad also said something similar: Hurt no one so that no one may hurt you. [The Farewell Sermon, 632 AD].

However, some ethicists have felt that it is a clearer statement of our moral obligation to one another, rooted in the underlying principle that we should not harm others. The latter was clearly expressed by the time of ancient Athens (~500 BC).

Note that the Silver Rule really states "do no harm"; the part about "what you would not have them do unto you" is really about defining what harm is (that is, it's harmful if you think it would be harmful to you). Similarly, the Golden Rule might be shortened to "do good", where good is defined as what you would want done, but this analogy isn't quite as exact.

The Golden Rule might be seen as requiring us to give actively to others, beyond merely not harming them. It is not always interpreted this way, though.

The underlying "reciprocity principle" of ethics has come up many times.

The Golden Rule has been widely criticized as not providing much of a way to find out whether others in fact want to be treated the same way you want to be treated. However, if it is applied primarily to the "big picture" issues of fairness and consideration, these objections have less strength.


Professional ethics

Law: lawyers have a legal AND ethical responsibility to take their client's side!
This can mean some behavior that would be pretty dicey in other circumstances.

Corporations: have a legal AND ethical responsibility to look after shareholders' financial interests.

This is not to say that a lawyer or a corporation might not have other ethical obligations as well.


Wrong v Harm


Not everything that is harmful is wrong.
Example: business competition

Not everything that is wrong is harmful:
Hackers used to argue that it was ok to break into a computer system as long as  you did no harm. While there are some differences of opinion on this, most people who were broken into felt differently.


Law v Ethics (p 37)

Laws:
    implement moral imperatives
    implement, enforce, and fund rights
    fund services
    establish conventions (eg Uniform Commercial Code)
    special interests
    

How do we decide what rules OTHERS should follow?
(Quite unrelated to how we decide what rules we ourselves follow.)

Ethical Relativism: it's up to the individual [or culture]. "Moral values are relative to a particular culture and cannot be judged outside of that culture" [LM Hinman, Ethics, Harcourt Brace 1994]. Hinman is speaking of "cultural ethical relativism"; a related form is "individual ethical relativism", sometimes called ethical subjectivism. That is, it's all up to you personally.

Does ethical relativism help at all with deciding questions facing you?

See Baase, p 32, under Natural Rights:
One approach we might follow is to let people (or cultures) make their own decisions. This approach has less meaning in the context of deciding how we should act personally. It is very attractive because (at first glance, at least), it is nonjudgmental, seems to promote tolerance, and seems to recognize that each of us arrive at our ethical positions via our own path.
    
Relativism has, however, some serious problems.

First, we often don't really believe this. Example:  murder/genocide; do we really mean that this is would be ok in Darfur if the Sudanese culture accepts it? The Nazi culture (at least the culture of higher party members) accepted genocide; do we really want to stick with relativism here?

Second, the central claim of relativism is that it is wrong to criticize the ethical principles of others. This in itself is an absolute (non-relative) statement, and as such is self-contradictory! The utilitarians and Kantians seem to suggest that part of an ethical theory is how it affects everyone; that is, it's not just up to you.

    
Some references in Baase illustrating that "Intellectual Property" is indeed a special case and not just an instance of physical property. For physical property, once we buy it there are no further strings.

p 199:
When we buy a movie on digital video disk (DVD), we are buying one copy with the right to watch it but not to play it in a public venue or charge a fee. [license/copyright strings attached]
    
p 200: five copyright rights [would these ever apply to physical property?]
  1. make copies
  2. produce derivative works (except parodies); includes translations
  3. distribution of copies
  4. performance in public
  5. display to the public
    
p 201 [is the future of the laws on physical property in doubt?]
    Nicholas Negroponte: "Copyright law will disintegrate"
        founder, MIT Media Lab
        founder, One Laptop Per Child; goal: $100 laptop
        
    Pamela Samuelson: "[no they won't]... balanced solutions will be found"
        Cornell Law prof
        writes Legally Speaking column in Comm. ACM


Suppose we do agree that songs are a form of property. Does that automatically mean we agree on what theft is? A bit of thought makes it clear that the answer is no: traditionally, the point of theft is that it denies the owner the use of the item. Traditional notions of theft just don't make sense here.

What about "unauthorized use"? That's a reasonable first approximation, BUT it opens up a huge can of worms as to what constitutes "authorization" and what constitutes "use".

Application of deontological/utilitarian analysis to music file-sharing

Music stakeholders (list from before (simplified)), with an indication as to how they might fare under file-sharing.

"signed" musicians
 lose
"indie" musicians
 gain
recording industry
 lose big
stores & distributors
 ??
current fans
 gain
future fans
 lose

Utilitarian perspective:

probably uses tradeoffs as summarized in the table above.
(might or might not weight recording industry $$$ losses higher than others.)
Deontological perspective probably would NOT consider these tradeoffs.

END OF CLASS, week 2


Deontological perspective:
        universal principles: respect for others, fairness, honesty
        
One approach: downloading is a form of theft.

Another approach: "we simply do not have ownership rights to information" (Stallman, later)
After all, we cannot own slaves either (in the US since 1865)

Kant, the Categorical Imperative, & file sharing:
do I really want file sharing to be ALWAYS ok?
Is free downloading a form of "using" other people? (Kant was against that)


Problem with strict ownership: social progress REALLY stalls. We'll see this later with patents, but entertainment is also based on incremental development, and one artist's response to others.

signed v indie musicians & all this

    utilitarian: which scheme is better for which type?
    deontological:
        do we owe signed musicians the right to decide distribution?
        do we owe indie musicians the right to an opportunity?
        Could we have both??
        

Why would people buy CDs? Some answers from ~2002:
     
Is there ANY way nowadays in which a CD is better than the download? (Of course, now you can buy from iTunes instead.)

What happens to the notion that there was some equilibrium reached between file-sharing and CD sales based on CD's still having an advantage? Did Eisner start this by agreeing that, as free music became more prevalent, it was appropriate to cut prices on for-sale music?

John Rawls & justice / ethics
Imagine that you have NOT YET BEEN BORN, and you do not yet know to what station in life you will be born. How does this affect your ideas about music pricing?

Your perspective might be very different if you knew you were going to be a songwriter, versus (just) an ordinary listener. However, you might also argue that (a) you like music, and therefore (b) you want musicians to be able to earn a living, because otherwise there won't be much music.

Per-track pricing at iTunes: how does THIS change the market model?

Fundamental conflict: evolution of technology v rights of creators

Is going back to the old way an option?

Napster


Napster was started June 1999. Content owners promptly sued, and Napster lost in federal district court in 2000. The Ninth Circuit appeals court then agreed to hear the case. They granted an injunction allowing Napster to continue operating until the case was decided, because they took seriously Napster's arguments that Napster might have "substantial non-infringing uses" and that Napster was only a kind of search engine while the real copyright violators were the users. The Ninth Circuit eventually found that Napster did indeed have Substantial Non-Infringing Uses, but they ruled against Napster by January 2001. After some negotiating, Napster was ordered in March 2001 to remove infringing content, which they technologically simply could not do, and so they shut down in July of that year.

Bottom line: Betamax videotaping precedent was rejected because, although SNIUs existed for Napsster, Napster had actual knowledge of specific infringing material and failed to act to block or remove it. Also, Napster did profit from it.
    
However, the court refused to issue an injunction for quite a while; it was clear that the Betamax precedent was being taken very seriously.

Legality in Napster era: napster.com was a clearinghouse for who was online, and what songs they held. Actual copying was between peers.

Did that make it ok?

Napster figured the RIAA would never bother with individual lawsuits against users.

Were they right?

Are such suits justified?
What evidence is needed for subpoena?

Note that signed and indie musicians fare VERY differently under the napster model!

Also note the long-term implications for "future fans"

IS napster like radio?

Napsterized business model for musicians:
make money giving live concerts, not selling CDs.

IS THIS REALISTIC? IS THIS FAIR? IS THIS JUST LIFE?
Is this a case of "harm" being unequal to "wrong"?

Question: is it ethical to cause harm?
What about economic harm?

RIAA Lawsuits

When you pirate mp3s, you're downloading COMMUNISM
File-sharing software works by sharing your files too; advertising your music folder(s) online when you join the service. Investigators look for these, by participating in online file-sharing networks. They record your IP address and the listed songs; they also generally download a few of the songs.
Different software works different ways. Kazaa shows a "share" folder. bittorrent shows your connection to a torrent "tracker" site, but there's no notion of "shared files".

Step 1: The RIAA files a "John Doe" lawsuit against your ISP. They issue a subpoena to your ISP, asking for your name, and, if relevant, the MAC address of your computer. These subpoenas are almost always in a group, asking for multiple customer names.

One legal criticism of RIAA lawsuits has been over joining together of multiple individuals in one ISP lawsuit. Normally you can't do that unless you believe the cases are related.

Prior to December 19, 2003, the RIAA didn't need to sue ISPs: it could subpoena ISP records without a lawsuit, under a provision of the DMCA. But then a court ruled that this DMCA provision did not apply to RIAA-type cases. [RIAA v Verizon]

The ISP usually complies, usually without contacting you. However, it is possible for either the ISP or you (if the ISP contacts you) to file in court to "quash" the subpoena. You do need a reason for that, however. It *is* possible to file to quash without giving up your identity, but you have to hire a lawyer.

Step 2: the RIAA now sends you a settlement letter, offering you a chance to settle before the lawsuit is filed. The settlement offer is usually something like $500-1000 per track. The RIAA may or may not distinguish between tracks that showed up in your directory, and/or tracks that they actually downloaded.

You can refuse to settle. However, in that case the RIAA will almost certainly go to Step 3.

Once the possibility of a lawsuit is raised, destroying evidence becomes both a civil and criminal offense.

Step 3: The RIAA files a lawsuit. They will ask for a forensic copy of your hard drives (they may ask for the hard drives themselves, but you're under no obligation to give them up). An independent forensic examiner will copy the drive, and determine whether or not the songs are there. (The MAC addrss from Step 1 plays a role here in determining whether they've got the right computer; so does other identifying information about KaZaa,etc.)

The cost of settlement goes up a little at this point.

Some defenses that have NOT helped:

Some possibly valid defenses in court:

The problem with all these is that you don't want to be going to court, and the RIAA does not have to consider these when settling.

It wasn't your computer.
Typically this is due to the ISP's misidentification of you. Sometimes it's because someone jacked your wi-fi. In this case the forensic examination of your computer will probably help.

Your roommate used your computer
Your problem here is proving that this is the case.

Your kids used your computer
There is a very limited legal doctrine of parental responsibility. Originally, the RIAA did sue parents, or made them settlement offers. More recently, after several losses, the RIAA has been suing the minors themselves. This is a little tricky; the court must appoint an attorney, often at the RIAA's expense. Also, in Capitol_v_Foster, Deborah Foster eventually won $68,000 in legal fees from the RIAA. Foster's daughter did the downloading. (The case was brought in 2004; the RIAA dropped their suit a year later but Foster continued with her countersuit. The judge eventually ordered the award for legal costs without a full trial.)


You didn't actually download any songs
What the RIAA has, as evidence, isn't evidence of downloading. All they have is evidence that you "offered" songs for downloading. At this point it might matter a great deal whether the RIAA actually tried downloading anything from your computer. Jammie Thomas had her case go to trial (the first RIAA case to reach a jury trial; Tenenbaum's July 2009 trial was the second) and she lost and was ordered to pay $220,000. But Judge Michael Davis later rethought this issue, rejected the "offered for distribution" theory, and ordered a new trial. Alas, the new trial reached a judgement against Thomas of $1.9 million.

Tenenbaum case

Joel Tenenbaum was caught downloading files by the RIAA, and was offered their past settlement offer, typically about $5000. He chose to fight. He got Harvard Law professor Charles Nesson to take his case pro bono; Nesson also involved his law-school class. They put up a vigorous and spirited defense before Judge Nancy Gertner.

They lost.

When it came time to assess damages (July 31, 2009), the jury decided $22,500 per track was fair, for a total of $675,000. Oops.

Actually, a core part of Tenenbaum's defense, and the central part of his appeal, is that the damages (and settlement offer) were disproportionately high, and not tied to actual damages. Normally, when you sue someone, all you can ask for is actual damages. Actual retail cost of music tracks is about $1. Tenenbaum got

Tenenbaum's case was the second RIAA case to go to trial. Jammie Thomas-Rasset was first; in her first case the verdict was $222,000. Thomas-Rasset got a new trial; the second verdict was $1,920,000.

Moral: think hard about settling early.

Tenenbaum's music downloading appeared to be both intentional and egregious; he had actually been sharing some 800 songs. However, it was done when he was a student.

An interesting point about the case is how the judge dismissed the fair-use claim based on the legal theory that fair use could not apply after Apple opened its iTunes store; that is, once it became possible to buy individual tracks, file-sharers lost any claim to fair use. That is, the underlying justification for "fair use" was that mp3 tracks were otherwise unavailable. Tenenbaum's appeal in part is about the idea that until iTunes dropped DRM its music tracks were still not really comparable to downloaded ones.

See http://arstechnica.com/tech-policy/news/2009/07/o-tenenbaum-riaa-wins-675000-or-22500-per-song.ars. and the links at the end to earlier articles.

It's really hard to generate much sympathy for the RIAA methods.
Consider, though, the theory that file sharing is a violation of their copyrights, and that such individual lawsuits are the ONLYway to proceed.

What's unfair about this process? What is fixable, within the constraints of the US legal system?

Some things to think about:

RIAA-2

The RIAA has officially given up on filing lawsuits against infringers, at least for now; they announced this policy in December 2008, just after the Tenenbaum case (lawsuits still in the pipeline will continue). The new policy is to work with ISPs to
 See http://www.wired.com/epicenter/2008/12/riaa-says-it-pl.

Why would ISPs want to go along with this plan? Here are a few reasons:
  1. file-sharers are also huge bandwidth hogs. (Linux users are too, but there aren't enough of us to matter. (How many times a day do you rebuild your kernel?)) The broadband business model basically gives every customer the ability to download several dozen gigabytes a day, but the hope is that most customers will actually download somewhere in the range of dozens of megabytes a day. File-sharers who download movies pretty solidly put themselves in the heavy-downloaders camp, tying up resources for everyone.
  2. The ISP might get sued. The RIAA probably wouldn't win, but it would be an expensive hassle.
  3. It's the Right Thing To Do. Knowingly cooperating with copyright infringement is wrong.
  4. Eventually, the RIAA is likely to press for laws requiring ISPs to cooperate. Better get started now.