Three strikes policies, filters, piracy taxes ahoy....
The Wall Street Journal
this morning reports that the RIAA will be abandoning their strategy of filing mass lawsuits against P2P users, a plan that has targeted some 35,000 people since 2003. The plan's primary objective was to generate news coverage, scaring other P2P offenders into compliance. Now that it's been made clear that the plan isn't working, it appears that the music industry is looking at new options that may not be much better. Most notable those options will include piracy filters and "three strikes" policies, hashed out with ISPs in private:
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. The RIAA said it has agreements in principle with some ISPs, but declined to say which ones.
We know that Cox now has such a system in place
, the company falsely suggesting
to customers that the law makes such a system mandatory, but insisting to us they give offenders every opportunity before termination. An anonymous source at Comcast also told me they had considered it when revamping their throttling practices. ISPs don't have to take this route; they're protected under safe harbor provisions within the DMCA.
For ISPs that won't play along, it appears the music industry got some help. The Journal indicates that NY Attorney General Andrew Cuomo has been helping to broker the deals in private. Cuomo has been a central force in the effort to get ISPs to become content nannies, recently waging a war against child porn that looked good politically, but didn't really result in ISPs doing much differently
. Cuomo threatened to sue ISPs who didn't adhere to his ineffective
plan, resulting in many ISPs shuttering access to perfectly legitimate newsgroups.
This new direction is undeniably a welcome shift for the RIAA, but
, we're heading into a strange new world that may not be much better. The RIAA says they'll still file single lawsuits when applicable. In addition to quietly brokering three strikes deals with ISPs and pushing for piracy filters
, the RIAA is hoping to enact a piracy tax
, that could tack $5 to $10 onto every broadband subscriber's bill. You can assume that if these "voluntary" (comply and we won't sue) provisions aren't adopted, you'll see them passed (lobbied) into law.
The new approach raises a lot more questions than it answers. Here's ours:
Can unreliable RIAA DMCA violation data be trusted?
You know, not that we don't trust the completely unaccountable shadow companies (like BayTSP
) who are paid to track pirates and pollute P2P networks with often malicious files, but the tracking system as it stands isn't exactly reliable or transparent. Not only do such companies work very hard to stay under the radar, it's technically possible to frame a printer
for a false DMCA violation.
How do users defend themselves?
How will users be able to defend themselves from piracy accusation when this is a closed-door, privately negotiated process? It doesn't exactly appear as if Cuomo or the RIAA employed the wisdom of legal experts or consumer advocates when drafting these new back-door agreements. Where's the consumer protection aspect? Where's the open debate? Where's the consistent, cross ISP, official complaint system overseen by an objective third party?
Impact on small carriers?
Sure, AT&T and Comcast want to be content juggernauts, and will probably think this is a splendid idea because it protects their content. But they have the deep pockets to implement such systems. What about smaller carriers? If we're going to make ISPs content nannies, aren't they now legally liable for everything from failing to act to acting in error? How do smaller carriers deal with the added legal, infrastructure and support costs of having to babysit their users?
Who keeps track?
Who'll run a master list of "offenders" that prevents users from just bouncing from ISP to ISP? This of course assumes users have competition and a choice of alternative ISPs. Tracking every uTorrent tot who has downloaded a few too many pirated anime DVDs as they skirt from ISP to ISP is going to be an unenforceable logistical nightmare. We don't even have a national broadband policy or an accurate U.S. broadband penetration map, but we're going to develop a universal offender piracy tracking list?
Does the punishment fit the crime?
Is the lack of connectivity, in an age where broadband is becoming a necessary utility, a balanced punishment for trading TV show torrents? Broadband is increasingly used for everything from managing finances to accessing important municipal services, and is of course absolutely necessary for telecommuters. Is account termination of a precious lifeline really fair punishment for downloading season two through four of HBO's The Wire
Aren't there more creative solutions?
Are there other creative music industry business models that don't involve turning network operators into private content police? Many artists have already figured out that piracy has shifted albums from product to promotional tool, used to make money via merchandising and touring. Aren't there other options to ensure artists will get paid fairly? Making ISPs babysit users is really the cure?
Won't the cost of implementing these systems be passed on to all consumers, regardless of whether they use P2P? Deep packet inspection technology, live network monitoring, the master database of offenders, the manpower required to send notices, the additional technical support required to help offenders and to address grievances: who pays for it? Not just pirates.