ISPs Join RIAA Strategy to Combat Illegal Filesharing

In late 2008, it was reported that the Recording Industry Association of America (RIAA) was working with Internet Service Providers (the folks that make your internet go) on a new strategy to combat the unauthorized sharing of copyrighted material. Instead of suing individual infringers, the RIAA said it would focus on a "graduated response" to unauthorized uses.

This new copyright enforcement concept goes something like this: the RIAA would give the ISPs info about suspected infringers’ IP addresses; the ISP would then locate the subscriber and send notices telling them to quit it or his/her account could be “deactivated.” Personally identifying info about the user — name, etc. — would supposedly not be shared between the ISP and the RIAA.

When the RIAA announced that it had signed “voluntary agreements” with major ISPs in December 2008, no actual ISPs were named. With details scarce, the reporting tended to focus on the fact that the lawsuits against individual infringers — which had generated an enormous amount of negative publicity for the major labels — would cease.

Well, news broke earlier today that Comcast and AT&T are officially entering a “trial” phase for their “notification” strategy, but didn’t provide details on when and where it will be rolled out, or whether it contains a punitive component (like “three strikes, you’re out”). Keep in mind that some ISPs are already sending out similar notices independent of the RIAA.

Comparable approaches have been kicked around in other countries for some time now. In Britain, a voluntary arrangement between the RIAA and/or BPI (formerly known as British Phonographic Industry) and the ISPs is already in place, although there is no compulsory penalty for alleged infringers. In France, New Zealand and Canada, there has been increasing debate about whether violators should get the boot.

The entire concept raises some questions. First, what due process provisions could customers use to defend themselves from accusations? And how do you deal with a situation where the person whose name is on the ISP bill is sent a takedown notice because their neighbor used their connection to illegally download the new Britney jam?

Then there are questions about how the RIAA determines that a file is being unlawfully shared. So far there haven’t been any specific details regarding filtering or digital watermarking (which could raise privacy concerns). And what are the criteria for determining an infringing behavior? If you buy an MP3 at home and send it to yourself at work via a file-sharing program, have you broken the law, or is this a “fair use?” What if you’re the composer, songwriter or performing artist but not the copyright owner? Do you have any rights in regards to how your music is digitally transmitted?

In 1996, Congress passed the Digital Millennium Copyright Act (DMCA), which included “safe harbor” provisions for the ISPs, meaning they weren’t held responsible for infringing content moving through their networks. In other words, they were “dumb pipes.” If the ISPs take a proactive role in policing their networks for infringement, are they leaving themselves open to possible litigation from other rights holders (photographers, movie studios, etc)?

Working with ISPs is probably a better strategy for the RIAA in terms of PR. Yet remains to be seen whether this scheme will have its intended effect. We’ll be keeping our eyes on any and all developments.