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John Browning sticks up for the average guy against the recording industry

Published in 2006 Texas Super Lawyers — October 2006

In August 2005, David Greubel, a father of four from Arlington, discovered that the Recording Industry Association of America was suing him. His crime? Allegedly illegally downloading and sharing 600 songs, including pop-rocker Avril Lavigne’s “Sk8er Boi,” on his family’s computer.
 
It looked like Greubel would have to pay up to a $9,000 settlement. Then his fortunes changed when his 15-year-old daughter Elisa e-mailed rapper MC Lars saying she could relate to his song “Download This Song” because of her family’s plight. Lars passed the note along to his management company, Nettwerk Music Group, and soon the Greubel family learned that Nettwerk, which also manages Lavigne, would be completely financing their court battle against the RIAA –– and footing the bill for any fines should the family lose the case.
 
On Greubel’s legal team is John Browning of Browning & Fleishman in Dallas, who has defended dozens of consumers nationwide who have been accused of illegal file-sharing. “I think for most people, they get this letter and they are intimidated. They don’t know where to turn,” he says. “But in this case, not every recording artist is singing along with what the RIAA is doing.”
 
The Greubel case isn’t the first time Browning has fought for the little guy. Several years ago, he successfully represented consumers who were accused of pirating satellite television by providers such as DirecTV. Thousands of lawsuits were filed, says Browning, making him “one of the busiest attorneys in Texas.” Soon the Electronic Frontier Foundation (EFF), a nonprofit organization dedicated to protecting the digital rights of consumers, helped to coordinate the legal response to the lawsuits and to educate those who had been sued.
 
So when the recording industry began filing similar lawsuits against alleged illegal file-sharers in 2003, the people at the EFF again called on Browning.
 
The DirecTV and recording industry lawsuits are “similar in many ways,” says Browning. “They were kind of shooting first and aiming later –– filing suits against people without much investigation. [The recording industry] has sued soccer moms who can’t even check their e-mail, and people who don’t even own computers, such as elderly grandmothers –– a number of individuals who couldn’t download music if you put a gun to their head.
 
“They’ve been casting a very wide net. And when you fish for tuna, you’re going to catch some dolphins as well.”
 
The recording industry casts that wide net, Browning explains, in part because of the privacy policies instituted by many Internet Service Providers (ISPs). At first, he says, recording industry executives would tell an ISP that they had a right to know the identities of subscribers. But some ISPs disagreed. “This simply slowed the recording industry down,” Browning explains. “What they now do is file a lawsuit, usually against 100 to 150 John and Jane Does. Then, with the lawsuit in place, they ask the court to authorize the issuance of subpoenas, which are routinely granted. They then go to an ISP and say, ‘We’ve got a subpoena for whoever has this Internet protocol address.’”
 
At this point, Browning says some ISPs hand over the personal information of subscribers, while others warn their customers to stop file-sharing or risk the consequences. “ISPs are getting better in terms of giving notice,” he says. “In early cases, most people didn’t receive notice until the lawsuit itself.” But now, he says, many service providers not only provide customers with an early warning and a copy of the subpoena, they also inform the subscribers where they can go for help, suggesting Web sites such as subpoenadefense.org.
 
Browning, who himself has never downloaded a song (“I’d have the biggest bulls-eye on me,” he says. “More than one recording industry person has tried to dig up information on me!”), has represented a number of cases that illustrate just how many dolphins the recording industry has caught in its net.
 
“Right now I’m defending a U.S. serviceman” –– Browning is careful not to identify many of his clients — “who is being sued because his little girl allegedly downloaded some music to make a mix-CD of her daddy’s favorite songs before he’s shipped off to Iraq or Afghanistan. They’ve sued an innocent parent.”
 
In another case, Browning fought for a Fort Hood soldier who was fingered because the offending Internet account was in his name, even though the man didn’t even own a computer –– his roommates did. “He was actually overseas at the time he was supposed to be illegally downloading,” says Browning.
 
“I’d say probably more than half my clients are parents; their names are on the ISP account. And as a result, they got the complaint. They’re being sued for something they quite simply did not do. You know that when a grandmother is accused of downloading 50 Cent and Ludacris, there’s something wrong,” he says. “It’s reinforced the idea that when you believe in your client, you never give up.”
 
As the normally genial Browning says this, his voice gets louder and he begins to speak more rapidly; it’s easy to see he feels strongly about his clients’ innocence. “I’m used to defending companies, ranging from mom-and-pops to Wal-Mart,” says Browning, whose other practice areas include products liability, commercial litigation and employment law, “but I think there’s something about the David versus Goliath approach –– the idea that you’re sticking up for the little guy.”
 
Browning represents underdogs in court, but when he’s on the tennis court, the “heavier than I’d like to be” 40-something would appear to be something of an underdog himself. He’s held his own against younger competition, however, and has even won the Clydesdale Open, a nationally televised doubles tournament for “heavyweight” players in Ohio. Browning also won the gold medal in men’s singles competition at the Clydesdale World Games in Mexico in 2002, just two weeks after undergoing an emergency appendectomy.
 
Still, Browning does most of his heavy hitting as a lawyer. But he goes easy on his clients in file-sharing litigation –– he takes many of those cases on a reduced-fee basis. “We’re lucky in that we also represent larger companies that can afford to pay our regular rates,” he says.
 
And Browning thinks he’s not the only one who isn’t getting rich from file-sharing litigation. “The recording industry says they’re forced into this by dwindling revenue and lower CD sales,” he says. “Perhaps the shock and awe of suing thousands of people, many of whom will be browbeaten into a settlement, is a successful strategy. But I think it’s costing them. They’re paying a price. The firms they hire are not cheap. I think that they are hoping that people don’t fight it.
 
“At some point you have to question if you’re going after the true record pirates — people turning out CDs [and selling them]. What message does it send when they’re going after end users?”

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