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Dozens in state face RIAA suits

Recording industry runs risk of raising anger of consumers

As the music industry expands and intensifies its war on digital piracy, dozens of people in Eastern Massachusetts are finding themselves caught in the middle of a high-stakes battle against Internet file sharing.

The nation's largest record labels on Monday filed lawsuits against 261 people, including 46 in the Boston area, for making pirated music files available for anyone on the Internet to copy and download for free.

The lawsuits against some of the industry's own customers run the risk of alienating consumers.

"It makes me mad that they're shaking up people," said Terrence Fitzgerald, a Mansfield resident named in one of the lawsuits. He said his 14-year-old daughter had frequently used the Kazaa file-sharing program to download perhaps 500 songs on their home computer, then share them with others.

Already, the Recording Industry Association of America had to move quickly to diffuse a public relations nightmare yesterday, settling for $2,000 a lawsuit filed against a 12-year-old New York City honors student who shared her digital music collection.

Most of the cases are expected to be settled before they ever reach court, where a judge could order file-sharers found guilty of copyright infringement to pay $750 to $150,000 for each song they made available over the Internet.

Copyright lawyers not involved with the cases said yesterday that, with the exception of lawsuits targeting the wrong people, few legal arguments seemed likely to get people who had actually shared songs off the hook -- even if they hadn't known that file sharing copyrighted songs was illegal.

Linking millions of people, these peer-to-peer programs allow users to search the shared contents of other computers, then download digital music files to play on a PC, burn onto a compact disc, or transfer to a music player.

To clear themselves, many of the defendants would have to prove that their computer was being used without their knowledge to distribute music, legal specialists said. To do that, they may have to point the finger at their roommate or even their child.

An estimated 60 million Americans are believed to share music over the Internet, dwarfing the 261 targeted by the recording industry. "These people are unlucky lottery winners in the industry's campaign," said Seth Yurdin, an attorney with Butters, Brazilian, & Small in Boston.

Lightning struck the Mullen family in Methuen. Megan Mullen, 21, used to download songs by Michael Jackson and other artists using the iMesh file sharing program. "Everyone was doing it, so it was almost normal to do," she said.

When a letter came in the mail warning that such downloads were illegal, she said, she stopped. But she didn't erase those songs from her computer or turn off the feature that lets other iMesh users tap into her shared music folder and copy her tunes. This was detected by record company investigators, who are focusing their legal fight not on those who download music, but on those who share their files with others.

Her mother, Joyce Mullen, a 52-year-old secretary, pays the Internet bill, so she was the one sued by the recording industry. "I'm horrified by the whole thing, because I don't do it," Joyce Mullen said. "I buy my own CDs. As a matter of fact, so do the kids."

Megan Mullen said she did not know that file sharing was illegal, but intellectual property lawyers said claims of ignorance do not hold up in court. Only defendants who can prove that they never shared the songs, or the rare few who used music strictly for such "fair use" purposes as satire or academia, stand much of a chance of beating back the recording industry's case, they said. "If you really downloaded it, you're probably better off finding a way out quickly," said Deborah Peckham, an intellectual property lawyer with Testa, Hurwitz, & Thibeault in Boston.

That's what Sylvia Torres, the mother of a 12-year-old honors student in New York City who was sued for copyright infringement, did yesterday. After Brianna LaHara's forlorn face appeared on the front page of the New York Post yesterday under the headline, "Music Pirate," the RIAA quickly moved to diffuse the public relations nightmare by settling with the family for $2,000.

"We understand now that file sharing the music was illegal," Torres said in a statement distributed by the music industry association.

The music industry association's president, Cary Sherman, said Monday some parents would probably receive lawsuits for file sharing by their children. He said the association would "be happy to" amend the lawsuits to name the children instead of the parents.

But Wendy Seltzer, a staff attorney with the Electronic Frontier Foundation, a San Francisco Internet privacy group and critic of the RIAA, said that places parents in a horrible position.

"Ordinarily, parents aren't held responsible for their kids' activities," she said. "But what parent is going to want to say, `No, name my child in the lawsuit instead?' "

Nancy Kinchla, a clinical researcher at the Dana-Farber Cancer Institute, said she deleted Kazaa from the computer in her Medway home after her Internet service provider warned that her identity had been revealed to music industry investigators. She doesn't think her teenage daughter did anything wrong by downloading hundreds of songs because she had never been advised the practice was illegal. "She wasn't selling the music," Kinchla said. "They should really go after Kazaa or people who are making money by bootlegging CDs. They're going to have to figure it out, because we live in a world of technology."

The recording industry has sued companies distributing file sharing programs and successfully shut down the early leader, Napster. But a federal judge this spring ruled that while the people sharing copyrighted music and movies on the Morpheus and Grokster programs were liable for infringement, the companies that made the software were not.

The ruling prompted the music industry to sue individual users. The RIAA took out ads in newspapers warning of the illegality of file sharing and sent 4 million instant messages to users of Kazaa and other software.

"It is unfortunate that the RIAA has chosen to declare war on its customers," Sharman Networks, the Australian company that distributes Kazaa, said in a prepared statement.

The recording industry's shipments have plunged 26 percent in the past three years, and sales in dollars have fallen 14 percent. Record labels have cut hundreds of artists from their rosters, faced backlash from customers about high CD prices, and suffered from the sluggish economy. But the RIAA blames digital piracy for the sharp declines and began suing file-sharers to scare others away from distributing music.

John Delehanty, a 19-year-old roofer from Lowell who was named in a lawsuit, said he buys two CDs a week for acts like 50 Cent and Korn, but downloaded about 200 songs over Kazaa. He stopped when he received an instant message a month ago telling him the activity was illegal.

"It doesn't tell you that when you download the thing," he said of Kazaa.

George Nadolny, 50, from East Bridgewater, got the message. After a warning from his Internet provider, the pipe insulator told his teenage daughters to stop downloading songs by Alanis Morissette, Avril Lavigne, and other artists; then he removed Kazaa from the home computer. "I used it as a civics lesson," he said. He got sued anyway. "If they come after me, they come after me," he said. "Maybe I'll be an example."

Chris Gaither can be reached at gaither@globe.com.

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