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For everyone who’s shocked, shocked, at the record industry’s legal campaign to stop people from sharing music over the Internet by suing them, I have one word — barbecue. That would be Ollie’s Barbecue, named after Birmingham, Ala., segregationist and barbecue-joint owner Ollie McClung, whose case against the U.S. government was one of the first tests of the landmark Civil Rights Act of 1964. Rather than settling or somehow delaying the case, the feds fought it right up to the Supreme Court. It was a striking instance of the government bringing its full might to bear against a little guy. The little guy lost — and he deserved to. Not that file-sharers necessarily have a whole lot in common with racists. But going after the little guy is a time-honored method of warning off others. Changing the way people think and act is, after all, a big part of why we have law in the first place. So, sure, the record industry’s lawsuits are obnoxious. But that alone doesn’t make them bad. What matters, rather, is what the suits are aiming to make people think and do, and whether or not the suits will fail in that effort. THE SOUND OF SUING Let me fill in the blanks. Back in September, the record industry, in a push coordinated by the Recording Industry Association of America, essentially started suing its customers. Two previous attempts to stop what the industry sees as illegal pirating of copyrighted music over computer networks hadn’t worked: The industry’s lawsuit against Napster shut down the company but not the sharing, and the industry flat-out lost its case against a “peer-to-peer” sharing network called Grokster (though the RIAA has appealed that ruling). So the record industry took the next step. The music labels filed a first wave of 261 suits against randomly selected hard-core users sharing music online. That batch of defendants included a 12-year-old girl and a 71-year-old grandfather. Since then, the industry has sent letters to 204 more people threatening them with legal action unless they first settle. Obviously, the industry wasn’t angling for good publicity. So what was it after? “To change behavior,” RIAA official Mitch Glaser told the Internet Law & Strategy newsletter in October. Now rewind back to 1964, when Congress had just passed the Civil Rights Act. Right after, some determined segregationist souls challenged the law without waiting to be sued themselves for refusing to serve blacks in restaurants, motels, and other public accommodations, as Title II of the act requires. One plaintiff was McClung. In Katzenbach v. McClung (1964), the Supreme Court described Ollie’s Barbecue as a “family-owned restaurant in Birmingham, Alabama, specializing in barbecued meats and homemade pies” that “caters to a family and white-collar trade with a take-out service for Negroes,” in violation of the integration requirements of the 1964 act. According to the Court, the key fact that placed the restaurant under the power of Congress was that Ollie’s “purchased locally approximately $150,000 worth of food, $69,683 or 46 percent of which was meat that it bought from a local supplier who had procured it from outside the State.” Out-of-state pig meat equals interstate commerce, and that gave the Court the constitutional peg it needed to uphold the law and require Ollie’s to serve blacks. (The Court also upheld the law’s enforcement in a companion case, Heart of Atlanta Motel v. United States, handed down at the same time.) SOMETIMES IT WORKS What was the result of all this? Were white Southerners angry about this? Did they defy the Court’s judgment in the name of the little guy’s right to do what he wanted with his own property? Nope. Says Richard Cortner, retired professor at the University of Arizona and author of “Civil Rights and Public Accommodations” (2001), “The voluntary compliance was just amazing. It astounded just about everyone in the government.” In other words, going after the little guy can work. You don’t do it because the little guys themselves pose real threats. When you ask a court to let you smash a kid’s piggybank or pry open the door to a “family owned” barbecue joint, you do it to let everyone else know you mean business. So anyone feeling squeamish about the RIAA’s tactics today needs to remember how important it was for the government to use a similar strategy back in 1964. On the other hand, just because bullying litigation can work, that doesn’t mean that it will work. If the civil rights case is one analogy for what the RIAA is doing, there’s another one that looks worse from the perspective of the record industry — the war on drugs. Since the U.S. government banned marijuana in 1937, untold billions have been spent on investigations, prosecutions and incarcerations. And that’s just the direct cost; it doesn’t count the wrecked lives, the broken homes and the rest of the collateral damage. Drugs, of course, are still here. SOMETIMES IT DOESN’T One microcosm of the war — the battle over medical marijuana — keenly illustrates how the threat of legal punishment can’t always beat people into submission. California in 1996 passed an initiative legalizing medical marijuana. The federal government then prosecuted a “cannabis buyers’ cooperative” in Oakland for going ahead and supplying pot to sick people. The case eventually went to the Supreme Court, which upheld the prosecution in 2001. With its high court victory in hand, the federal government has continued to enforce its own prohibition of medical marijuana. At the same time, there has been heavy flouting of its efforts. According to the Web page of a group called Green Aid: The Medical Marijuana Legal Defense and Education Fund Inc., the San Francisco Bay area alone has two dozen cooperatives and groups to help people who want medical marijuana. And it’s not just the public at large that’s refusing to embrace the federal law. In a case earlier this year of a man convicted of growing thousands of marijuana plants, which he contended were for medical purposes, a federal district judge handed down a sentence of just a single day in jail. So does the RIAA’s current campaign resemble more the government’s efforts to protect civil rights or its efforts to prosecute the war on drugs? The answer has less to do with law than with culture. The 1964 Civil Rights Act was the high-water mark of decades of agitation, protest, legislation and court decisions that made up the modern civil rights movement. And the roots of that movement date back even further, at least to the Emancipation Proclamation. By 1964, there was, if not quite a national consensus for recognizing the civil rights of black Americans, at least a solid majority behind them. Those communities that actively and overtly discriminated against blacks in public accommodations were holdouts against a wider trend. The federal government just nudged things along. The war on drugs, on the other hand, is pushing against an evolution of attitude. In the decades since the effort started, the country has no doubt seen the damage that drugs can wreak, but it has also seen that the cure might be as bad as the sickness. Add to that the conclusion many have come to that drug addiction is more disease than crime, an international movement toward easing up the strictest forms of enforcement, and the fact that many simply see nothing wrong with smoking pot. Taken together, it looks like the government is fighting a rear-guard action. MUSIC, LIKE A DRUG? And file sharing? Unfortunately for the record industry, it’s kind of like drugs. Computers have proliferated in the last decade, and people increasingly use technology as an extension of themselves. Just look at the term “personal computer,” or at the number of people who seem unable to breathe without their cell phones or digital music players. This stuff is wired to let people use it virtually anywhere and anytime. Or worse, the technology isn’t wired at all; the proliferation of “wi-fi” networks is making it even easier for people to tune in. More important, as with marijuana, it’s not even clear that a lot of people feel any sense of taboo associated with swapping music. According to a Sept. 11 article in Wired magazine, many file-swappers “simply don’t understand what they did wrong.” Indeed. Though she changed her tune soon after the recording industry sued her daughter, the 12-year-old girl’s mother initially told the press, “It’s not like we were doing anything illegal.” Another indication that music-swappers see no shame in what they’ve done is that, of the original 261 legal complaints that the RIAA filed, only 52 of the defendants have settled, according to an RIAA spokesperson. (On the other hand, almost a thousand people have contacted the association on their own to confess and work things out without litigation.) So the record industry can go ahead with its lawsuits that cherry-pick individual file-sharers. But it should also keep in mind what one American leader said about the power of legal enforcement campaigns. In 1956, when asked his views on the school desegregation that the Supreme Court had so recently mandated, President Dwight Eisenhower responded: “It is difficult through law and through force to change a man’s heart.” The success of civil rights laws shows that Ike wasn’t necessarily right. I suspect that the RIAA is finding out he wasn’t necessarily wrong, either. Evan P. Schultz is associate opinion editor at Legal Times . His column, “Controversies & Cases,” appears regularly. He can be reached at [email protected].

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