As I've noted in past blog entries, out of court cash settlements aside, the Recording Industry Association of America (RIAA) has little to show for its five year-long legal campaign against online file sharers. Despite filing more than 35,000 lawsuits against end users, the RIAA has failed to set any sort of legal precedent in its favor. Its only court victory, against single mother Jammie Thomas, has been declared a mistrial by a Minnesota U.S. District Judge and its argument that the act of making files available for download violates copyright law is likely to receive a legal trouncing. Furthermore, the RIAA has done plenty to tarnish its own image over the course of this campaign, sending infringement notices to grandmas, the deceased and even laser printers.
Well, it seems that, at long last, the RIAA has realized that not only is it losing the war on piracy, it's also alienating its potential customers in the process. Today, the Wall Street Journal revealed that the RIAA is largely abandoning lawsuits against individual users as a means to fight piracy. Though the association reserves the right to pursue large file sharers through litigation, it will no longer file suits against users who casually trade music online. To those of us who have spent the last few years criticizing the RIAA's overzealous legal campaign, this comes as welcome news. However, the association's new strategy for fighting piracy–partnering with ISPs to kick alleged file sharers off of the Internet–is quite possibly even more troubling than a barrage of lawsuits.
Back in October, I briefly commented on a “three strikes” policy that was being adopted by cable Internet service provider Cox Communications. According to reports from Cox customers, the ISP was giving users the boot after receiving three notifications from a copyright holder that the user in question was believed to have shared files online. In a magnificent display of hubris, the ISP's letters to users claimed that, “Under the DMCA, we have the responsibility to temporarily disable your Internet access, until such time as you take the necessary steps to remove the infringing files and to prevent further distribution of copyrighted material.” Of course, this is quite simply untrue. But that small detail didn't stop Cox from terminating users' Internet access on the basis of three RIAA letters of questionable veracity.
Today, the Wall Street Journal revealed that the RIAA has reached preliminary agreements with “major ISPs” that will require those providers to adopt similar “three strikes” policies. In a nutshell, the RIAA and/or its member companies will send letters to the ISPs reporting the IP addresses of users who are suspected of hosting copyrighted works online (see an example letter here).
Depending on the agreement, the ISP will either forward the note to customers, or alert customers that they appear to be uploading music illegally, and ask them to stop. If the customers continue the file-sharing, they will get one or two more emails, perhaps accompanied by slower service from the provider. Finally, the ISP may cut off their access altogether.
There's little question as to why the RIAA has chosen to shift gears with regard to its anti-piracy strategy. It seems like the only thing the association's previous strategy was good at was generating bad PR. But why are the ISPs going along with the RIAA's “three strikes” plan? The DMCA's safe harbor provisions shield ISPs from liability for their users' actions online, which means that service providers are under no obligation to comply with the RIAA's notices. Despite this fact, they're agreeing to play the role of “copyright cop,” taking on additional responsibility just to enforce the intellectual property rights of other companies. While it's hard to say why this is an attractive prospect for the ISPs without knowing the exact terms of the agreements, there's one explanation that makes a lot of sense.
ISPs have been blaming “bandwidth hogs” for Internet congestion for some time now, though when providers have tried to address this problem through the use of network management technologies, they've often found themselves the subject of a public outcry. By complying with a “three strikes” regime, ISPs can conveniently shift the blame to the RIAA and claim that they were simply complying with takedown notices–even if the law does not require them to do so. If this has the added benefit of allowing ISPs to kick high-bandwidth users off of their “all you can eat” networks, thereby allowing them to put off costly upgrades to their oversubscribed infrastructure, then so be it.
According to the Wall Street Journal, these deals between the RIAA and the ISPs were brokered by New York State Attorney General Andrew Cuomo, who reportedly “wanted to end the litigation.” While it's hard not to agree with that sentiment, you've got to wonder whether there might not have been another solution to the problem that didn't involve content companies and ISPs deciding who should and shouldn't have access to the Internet.
After all, if Cuomo had bothered to look across the pond, he would have noticed that the European Union saw fit to strike down “three strikes” policies with an amendment that referred to such agreements as “…measures conflicting with civil liberties and human rights and with the principles of proportionality, effectiveness and dissuasiveness, such as the interruption of Internet access.” Access to the Internet is increasingly becoming a necessity for ensuring full participation in our society, democracy and economy. Should we allow an industry trade group with a notoriously bad track record to serve as the gatekeeper to the Internet?
To be fair, not everything in the RIAA's outlined strategy is nefarious. Under the new regime, the RIAA will not ask ISPs to reveal the identities of their users. Rather, the association will identify users anonymously, using only their IP address. While an IP address isn't a very accurate identifier when it comes to human beings, at the very least, the user's personal information will be protected throughout the “three strikes” process.
At this stage, the RIAA has only outlined its new strategy in vague terms. Many questions still remain. If a user's service is terminated by an ISP, what recourse does that user have? What if the user maintains that she was not responsible for the alleged acts of file sharing? Will ISPs share data with each other about users that have received warnings? Will there be a national “blacklist” of users who are to be refused Internet access? Will ISPs eventually step up their role and filter their networks for copyrighted content, thereby simplifying and automating the process?
Until the RIAA speaks publicly about its new strategy, we're unlikely to receive the answers to any of these questions. However, in the meantime, it's worth considering if there might not be a better way to deal with the problem of piracy online. While there's no question as to whether or not the current level of piracy hurts artists, labels and the economy at large, kicking users off of the Internet seems a bit like using a sledgehammer to kill an ant. There are other proposals currently on the table–EFF's voluntary collective licensing proposal being the most prominent one–that would address the issue of piracy without criminalizing users or stripping them of their right to access the Internet. Given the importance of the Web in contemporary life, as evidenced by the recent Presidential election, I sincerely hope that the RIAA considers every alternative before it starts kicking users off of the Internet.