ISP = Internet Service Police??

The RIAA’s latest attack on illegal music downloading enlists the aid of the ISPs to filter content for illegalities.

UPDATE 3/28: ATT has stated that they will not cut off service based on RIAA warnings – Jim Cicconi, ATT Senior Executive VP for External and Legislative Affairs, stated:

“What we do is send notices and keep track of violations and IP addresses… It’s our view that any stronger action has got to rest with the copyright owner…That’s what the courts are there for.”

Better than being an RIAA enforcer.

As the internet’s importance in our lives increases, its reach and ubiquity continues to threaten some embedded power structures in unimaginable ways. The most notable among them is the continuing erosion of the CD music business and its threat to the “lifestyles of the rich and famous” music industry suits.

The RIAA’s (Recording Industry Association of America, the lobbying group representing the four largest recording companies) heavy-handed enforcement actions that targeted a few individuals for high-profile fines ended with a new approach that centers on using ISPs to filter user’s downloading activity for illegal file downloads. This places the burden of enforcement on the ISP. One would think that the ISPs would be reluctant to open this Pandora’s box, but in fact it appears that ATT and Comcast have signed on to act as download police for the RIAA.

This action is so fraught with legal issues that it boggles the mind. Recognizing the implications for infringements in individual liberties and the due process of law, the European Parliament voted and rejected the concept of a so-called “three-strikes” law because they view it as “conflicting with civil liberties and human rights and with the principles of proportionality, effectiveness and dissuasiveness”.

Christofer Fjellner representing Sweden stated: “What’s important about this decision is that now it’s clear that you can’t force [internet service] providers to ban people from the Internet without a legal process.”

Think about this scenario: The RIAA uses the ISP to act as judge, jury and executioner of the RIAA, by the RIAA and for the RIAA. I thought we had a legal process to do this. What recourse does a consumer have here if wronged? Will there be an RIAA appeals court to go along with this?

At one point, the ISPs were on the side of an unfettered network (See HERE) which basically kept the ISPs as a conduit, not an enforcer. As stated  HERE:

“The way the new enforcement system will work is that the RIAA will alert an ISP that a customer appears to be file sharing. The ISP will then notify the person that he or she appears to be file sharing. If the behavior by the customer doesn’t change, then more e-mails will be sent. If the customer ignores these e-mails, then the ISP may choose to suspend the person’s service. If all else fails, they can choose to discontinue service.

Under the plan, which was brokered by New York State Attorney General Andrew Cuomo, the music industry will not know the customer’s identity. What this means is that ISPs have now gone into the enforcement business, and this has always been one of the greatest fears of those who have wanted ISPs to remain neutral.”

ATT has decided to take on the enforcement role as stated  HERE:

“At a digital music conference in Nashville, Jim Cicconi, a senior executive for AT&T told the audience that the ISP has begun issuing takedown notices to people accused of pirating music by the Recording Industry Association of America, according to one music industry insider who was present.”

The following is what the RIAA would send to ISPs:

“Sir or Madam:

I am contacting you on behalf of the Recording Industry Association of America, Inc. (RIAA) and its member music companies. The RIAA is a trade association whose member companies create, manufacture, and distribute approximately ninety (90) percent of all legitimate music sold in the United States.

We believe a user on your network is offering an infringing sound recording for download through a peer to peer application. We have attached below the details of the infringing activity.

We have a good faith belief that this activity is not authorized by the copyright owner, its agent, or the law. We are asking for your immediate assistance in stopping this illegal activity. Specifically, we respectfully request that you remove or disable access to the unauthorized music.

We believe it is in everyone’s interest for music consumers to be better educated about the copyright law and ways to legally enjoy music online. The major record companies have actively licensed their music to dozens of innovative services where fans can go to listen to and/or purchase their favorite songs. A list of many of these services is available at www.musicunited.org.

It should be made clear by this letter that downloading and distributing copyrighted songs via peer to peer networks is not an anonymous activity. Not only is distributing copyrighted works on a peer to peer network a public activity visible by other users on that network, an historic 2005 U.S. Supreme Court decision affirmed the unmistakable unlawfulness of uploading and downloading copyrighted works. The website www.musicunited.org contains valuable information about what is legal and what is not when it comes to copying music. In addition to taking steps to notify the network user at issue about the illegal nature of his/her activity, we strongly encourage you to refer him/her to this helpful site.

Please bear in mind that this letter serves as an official notice to you that this network user may be liable for the illegal activity occurring on your network. This letter does not constitute a waiver of our members’ rights to recover or claim relief for damages incurred by this illegal activity, nor does it waive the right to bring legal action against the user at issue for engaging in music theft. We assert that the information in this notice is accurate, based upon the data available to us. Under penalty of perjury, we submit that the RIAA is authorized to act on behalf of its member companies in matters involving the infringement of their sound recordings, including enforcing their copyrights and common law rights on the Internet.

Thank you in advance for your prompt assistance in this matter. If you have any questions, please feel free to contact me via e-mail at [email protected], via telephone at *Phone Number*, or via mail at RIAA, 1025 F Street, NW, 10th Floor, Washington, D.C., 20004. Please reference *Case ID* in any response or communication regarding this matter.

Sincerely,

RIAA”

Now I have no love for pirating copyrighted material – this site has been copied both wholesale and by individual articles over the years and enforcing our rights has been a struggle. However, what’s at issue here goes way beyond copyright enforcement – the core issue is the degree to which an outfit such as the RIAA can infringe on a user’s legal rights by depriving the user of a service which the users pays for with allegations of illegal file sharing – all outside of the legal protections we in the USA enjoy.

I come back the my initial thought that this is more driven by recording companies protecting their music monopoly than anything else. If you think that the recording industry allows unfettered access to any artist who has talent, I have a bridge to sell you. The record labels exert control over music distribution and the internet does not – and there you have the nub of the issue – control.

Some artists have embraced the internet and are providing material free – pay for it what you think it’s worth. I have no idea what business model will work, but you can’t dismiss iTunes as the beginning of a new approach to this issue. The business model which removes the record industry and the filter between the artist and the consumer is so radical to the existing monopoly model that it’s no wonder the RIAA is fighting to preserve its monolpoly.

The subsequent larger issue is the degree to which ISPs take on quasi-legal status as enforcers of “the law” as it may be defined by whomever. Net-Neutrality is not some loose phrase floating around in esoteric legal circles – it’s an issue that directly impacts internet users and could impact, in the extreme, big time.

My feeling is that the concept of ISPs having enforcement power over internet content (outside of child porn) is the antithesis of individual liberty – is the Chinese model for internet content purification where we’re headed?