"Suing Your Customers: A Winning Business Strategy?" --Strategic Managment @ Wharton

Interesting 2003 article I just came across, by Prof. G. Richard Shell published at StrategicManagement@Wharton

Suing Your Customers: A Winning Business Strategy?
By Prof. G. Richard Shell

The recording industry has a pricing problem. People do not want to pay $15-20 for a compact disc when they can download the same music for free over the Internet. The industry’s solution appears as novel as the technology that is giving it such headaches: launch hundreds of lawsuits against otherwise law-abiding consumers who download music. But, as Wharton legal studies professor G. Richard Shell writes below, this same tactic was tried 100 years ago against Henry Ford. It didn’t work then, and it won’t work today. Shell is author of a forthcoming book on legal and business strategy.

The recording industry has a pricing problem. People do not want to pay $15-20 for a compact disc when they can download the same music for free over the Internet. The industry’s solution appears as novel as the technology that is giving it such headaches: launch hundreds of lawsuits against otherwise law-abiding consumers who download music.

After all, the music industry has invested billions of dollars in its product and thought it had iron-clad intellectual property protection for these investments – copyrights in recorded songs issued by the United States government. But having a strong legal claim on the merits is only one factor in legal strategy success. Indeed, this factor is often the least important one from a business point of view. Other key strategic considerations include the public legitimacy of an industry’s legal attack (i.e. how the move will play in the court of public opinion), the vulnerability of an industry’s strategic position in its market, the resources it has available to sustain a legal war, and the access an industry has to important legal decision makers such as regulators and legislators who can make new rules in the industry’s favor.

The recording industry balanced these factors well in its initial legal strategy – suing online distribution companies such as Napster. Napster was a direct threat with no legitimacy of its own. Its only appeal was whimsy: Average citizens thought its creator, Shawn Fanning, had a neat, new technology. But they also recognized that Fanning was selling the key to somebody else’s candy store. Nobody formed a “Free Fanning” committee to bail him out of legal trouble.

The recording industry, however, has gone one step too far with its latest legal move. Suing your customers is not a winning business strategy. Industries have a completely different strategic relationship with customers than they do with rivals. And this sort of strategy does not play well in the court of public opinion.

Complete Text of Article