Article 43


New RIAA Police


RIAA Replaces Mass Lawsuits With Potentially Dumber Ideas
Three strikes policies, filters, piracy taxes ahoy....

By Karl Bode
Broadband Reports
December 19, 2008

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 alertcustomers 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 can 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?

Who Pays?

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.



Below is a copy of the form letter the RIAA will send to ISPs to inform them one of their customers is accused of file sharing. The notification is similar to those the group has sent to college campuses for years and shows very clearly that the group retains the right to sue people for copyright violations.

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 DOT MUSICUNITED DOT 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 DOT MUSICUNITED DOT 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 , 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.



List of infringing content
*Infringing Content*
Infringing Work : XXXXXX
Filename : XXXXXX
First found (UTC): XXXXXX
Last found (UTC): XXXXXX
Filesize : XXXXXX
Network: XXXXXX
Protocol: XXXXXX


Posted by Elvis on 12/26/08 •
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