ISPs to Deliver RIAA Notices, Cut Off Suspects, at Cuomo’s Prodding
Internet service providers are getting cozier than ever with the recording industry, thanks in part to the involvement of New York Attorney General Andrew Cuomo. RIAA confirmed that it’s phasing out its five-year-old campaign of lawsuits targeting end users suspected of P2P copyright infringement, and will instead send warnings through ISPs to their subscribers. Similar to some universities’ policies on repeated infringement, ISPs will at least briefly cut off Internet access to subscribers for which they receive repeated complaints from record labels. RIAA has “agreements in principle” with “leading ISPs,” a spokeswoman told us, declining to name them.
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Digital rights activists cheered the phasing out of most end-user lawsuits but criticized their replacement with a so- called three-strikes policy, whose application in France has roiled the EU. Virgin Media in the U.K. adopted an education-only warning system in cooperation with the British Phonographic Industry as well.
Cuomo, who secured agreements with Verizon, AT&T, AOL and other ISPs to block Usenet newsgroups known to host child porn (CD July 11 p4), expressed interest in RIAA’s talks earlier this year, the RIAA spokeswoman said. Talks with ISPs were “progressing really well” when Cuomo stepped in, she said, denying that ISPs’ fear of Cuomo made them play ball with RIAA. Cuomo Chief of Staff Steven Cohen told the Wall Street Journal that the RIAA lawsuits were “not helpful.” We couldn’t reach Cuomo’s office for comment.
Only in the past two months did RIAA decide to end the lawsuit campaign, though suits already filed will continue, the RIAA spokeswoman said. That includes the retrial of Capitol v. Thomas, whose $222,000 judgment against Jammie Thomas was thrown out after the judge decided his jury instructions were faulty. RIAA wanted to “have enough pivot momentum where ISPs would work with us” before ending the lawsuits, the spokeswoman said. “We've kind of reached a point where everything has crystallized” around an “alternative deterrent approach.” RIAA’s pre-suit settlement letters to college students, forwarded by their universities, will also cease. The agreements with ISPs call for a graduated response that could suspend user accounts in some circumstances. RIAA is reserving the right to file suit against subscribers who ignore the notices from ISPs.
California ISPs haven’t heard from either Cuomo or RIAA about the new approach, Chairman Mark Esser of the California Internet Service Providers Association told us. The group was in contact with Cuomo’s office on blocking child porn in newsgroups, and later agreed to such a deal with its own state officials. The association’s wish is that any agreement have the backing of Congress, Esser said: “I don’t know an ISP in the country that wouldn’t say ‘okay'” to a federal law that tasked ISPs with blocking illegal file transfers. “Unfortunately the states are stepping beyond their bounds of authority,” though, he said.
Conflict could emerge if ISPs don’t see the infringing activity alleged by record labels, or if the infringement notices are too voluminous, Esser said. ISPs will pass on notices to “legitimate addresses” but don’t want to send a “giant list of 10,000 notices” at a time, for fear of violating federal spam law, he said. It’s possible the notices could be delivered in monthly billing statements, Esser added. Smaller ISPs are sympathetic to the recording industry’s plight because many officials came from the software industry, which suffers from heavy piracy, he said. Because of the FCC’s punishment of Comcast for throttling BitTorrent traffic, “we can’t just say we're going to limit one protocol” to free up scarce bandwidth, either, Esser said.
Several ISP sources we asked didn’t know if their companies had talked with RIAA or Cuomo. USTelecom and Verizon declined to comment. Verizon, however, has a history of working with copyright owners to notify subscribers of alleged infringement. In 2005 the company started doing essentially what RIAA proposed, but only for copyrighted works owned by Disney.
Public Knowledge is happy that RIAA is dropping its “counterproductive” lawsuit campaign and has no problem with ISPs forwarding infringement notices, so long as they don’t become “copyright cops,” President Gigi Sohn said. But the group wants consumer protections in place to prevent ISP subscribers from being cut off from access solely on the basis of a copyright owner’s allegation, she said. RIAA agreements with providers also shouldn’t include filtering conditions, Sohn said. Fred von Lohmann of the Electronic Frontier Foundation said RIAA lawsuits haven’t slowed growth in file-sharing or “gotten a single artist paid.” But he worried the three-strikes proposal would mean “more music fans are going to be harassed by the music industry” and be denied due process. “Anyone who has ever had to fight to correct an error on their credit reports will be able to imagine the trouble we're in for,” he said.