Commentary

RIAA Enlists ISPs To Police File-Sharing

by Wendy Davis , Staff Writer, December 19, 2008

Here's the good news. After instituting proceedings against more than 30,000 music fans since 2003, the RIAA has decided it will no longer file lawsuits against individual Web users.

But here's the bad news. The RIAA is forging deals with Internet service providers to target alleged file-sharers without going to court.

The RIAA has already come to agreements in principle with some large ISPs for a program to sanction alleged file-sharers. Complete details aren't known, but reports say that the sanctions would begin with warnings and culminate with disconnections.

In other words, the ISPs will become the RIAA's private copyright police. That idea should horrify anyone who cares about preserving people's ability to communicate.

Consider, if ISPs and the RIAA do implement their own extra-judicial plan, who will decide when copyright infringement has occurred? The one thing we've learned from the last five years of litigation is that the RIAA, with its penchant for suing dead people and other now-exonerated citizens, frequently gets it wrong.

But at least the legal system has built-in safeguards. When the RIAA goes to court, it can't learn individual users' identities unless it presents a judge with enough evidence for a subpoena. And it can't prevail at trial unless it convinces a judge and/or jury that the user did actually infringe on copyright.

If ISPs simply cut users off, the burden to go to court to attempt to reverse that decision will be on individual users -- many of whom can't even afford to hire attorneys to defend themselves from the RIAA's lawsuits.

From the beginning, the decision to file copyright lawsuits against individual Web users was controversial. Now, more than five years after the campaign began, the strategy has proven disastrous on many levels.

It has cost the RIAA millions of dollars in legal fees, not to mention the kind of badwill you can't put a price tag on. Judges have condemned the imbalanced prosecutions and the RIAA's ability to extract ruinous damages. Meanwhile, the one case to go to a jury resulted in a mistrial.

The shift away from litigation is long overdue. But a decision to enlist ISPs as private enforcers is cause for serious concern.

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7 comments about "RIAA Enlists ISPs To Police File-Sharing".

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Marc Forget from Razorfish, December 19, 2008 at 3:27 p.m.
I agree that the lawsuits against individuals are frivolous. I also agree that ISPs shouldn't act as judge and jury. However, I just feel that the tone of these posts generally conveys that people should be allowed to just share files with no consequence. And I think that people who do not create art such as music or movies or photography feel that the work of those artists should basically be accessible for free online and be allowed to be shared freely with no payment to the artists. I wonder if a lawyer, journalist, accountant, etc. would agree to be paid for his or her work once, and then have that work just available for free to anyone who wishes to use it?
Reply

Linda Lopez from Independent, December 19, 2008 at 3:42 p.m.

What Marc said. Plus this: We wouldn't be at this pass, with the prospect of ISPs wielding the gavel on file sharers, had new media's thought leaders not been so cavalier about the morality of stealing other people's work without paying for it. What a mess it's going to be, as innocent people get inconvenienced, disconnected, and even dragged into court. But we will have only our selfish selves to blame.

Paula Lynn from Who Else Unlimited, December 19, 2008 at 3:48 p.m.

The problem as others have pointed out is that the balance is off. Nothing is free. Instead of suing for insurmountable amounts, put it all into $10 or $25 increments. $.99 tracks even at five bucks add up. Not enough to stop the theft? An ounce of prevention is worth a pound of cure. Again, balance.

David Hayes from CopyrightData.com, December 19, 2008 at 4:41 p.m.

In response to the argument "I wonder if a lawyer, journalist, accountant, etc. would agree to be paid for his or her work once, and then have that work just available for free to anyone who wishes to use it?":

Lawyers, journalists, accountants work on what copyright law recognizes as a work-for-hire basis. The Supreme Court unraveled what this meant in a 1989 decision summarized at http://chart.copyrightdata.com/c04B.html. Some earlier cases are summarized on the same page. The upshot is that when the employer pays a creator a salary for the creation of the work, the employer rightfully owns it and it is legitimate that there be no further payment. Writers for prime-time broadcast programs (for instance) are very well paid (although in some cases, the guilds have contracted for subsequent royalties but not future control).

The copyright law which affects U.S. works from 1909 to 1977 famously allows for the creator to get a second chance at negotiating for rights and payments, leading to works being unavailable owing to convoluted rights entanglements. You can read a summary of the most famous of these cases at http://chart.copyrightdata.com/c09A.html#s063. On the same page are a multitude of other decisions, all of which flesh out what occurred when creators got the heralded second chance, provided that the works had not been created on a work-for-hire basis, which had led to legislators wanting to provide for creators who might be poorly paid the first time out owing to a presumed disadvantage in bargaining. (Look on the chart.copyrightdata.com site for a quote from Mark Twain on this subject.) The current legal landscape keeps 1978-and-later works available, when the publisher sees a market for it, and there is not a contractual issue concerning how much is to be paid per unit sold. The fly in the ointment right now are the illegal downloaders who can squelch a market by putting free copies in the hands of the would-be purchasers.

Marc Forget from Razorfish, December 19, 2008 at 4:57 p.m.

In answer to Karl, yes, you are correct: my analogy was piss poor. There's a huge difference between the way artistic works are created and the way work is created in other professions. What I'm trying to say (and I disagree with your statement that artists are trying to be paid endlessly) is that after putting a lot of time and effort to produce a work of "art", the end product is sold for a small amount which consumers can afford. If only, say, 100 people (I'm exagerating to make a point) buy a song at $0.99 and then share it with everyone else, then the cost of creating that song is far from being recovered. Lawyers and accountants are usually gainfully employed on a continuous basis. And I think that free lance journalists should be compensated for use of their work beyond what is considered fair use. Why should we get any product without paying for it?

Paula Lynn from Who Else Unlimited, December 19, 2008 at 6:05 p.m.

The Newspapers do not get a royalty every time they are quoted just as the journalists do not get paid for a quote. If an article is used to produce income - e.g. in the production in the sales of a greeting card - then there can be a royalty. Realistically, who is going to pay to police these actions as well as who is going to pay to halt every little infraction? The system definitely needs a revision to balance out who gets what for what.

Douglas Ferguson from College of Charleston, December 22, 2008 at 12:01 p.m.

Go back and read those first two paragraphs: Wendy says fewer lawsuits against pirates is good. Then she says stopping piracy at the ISP level is bad. Bad for whom? Thieves? I guess as long as they're not stealing from YOU, it's ok to steal.