Blog Post

RIAA Drops Lawsuit Strategy for "Three Strikes" Plan

The Recording Industry Association of America, which has spent the past five years suing tens of thousands of individual file-sharers for copyright infringement, has apparently decided to change tactics, according to a report in the Wall Street Journal (hopefully this one is a little more reliable than the recent story about Google’s views on net neutrality). The good news is that they are going to stop suing 13-year-olds and retired war veterans and single mothers for downloading music. The bad news is that their new plan involves cutting sneaky backroom deals with Internet service providers to take a so-called “three strikes” approach: They let the ISP know when they think you’ve been sharing copyrighted material, and the provider agrees to send you an email warning; the second time, you get a letter; do it again and your Internet access gets cut off.

This is not a new idea. The French government has proposed legislation that would require Internet providers to cut off subscribers for up to a year if they repeatedly engage in copyright infringement, and the British recording industry association managed to convince several major ISPs to agree to warn their users, although they have stopped short of cutting off their access altogether. While the European Parliament approved a resolution in November saying “three strikes” legislation was an unreasonable breach of the rights and freedoms of Internet users, the EU’s Council of Ministers rejected the resolution and it appears that the French law will go ahead.

Even if the RIAA or the ISPs could identify file-sharers or copyright infringers with 100 percent accuracy, the three-strikes approach would still be disturbing, since it effectively turns ISPs into an extra-judicial copyright police squad, with the power to cut off a service without any appeal. But it’s even worse than that. If there’s one thing that all the lawsuits launched by the RIAA have shown, it’s that the record industry has a pretty poor track record when it comes to actually identifying who is sharing what kinds of files and whether they are infringing or not. So now instead of lawsuits against the wrong people for the wrong reasons, Internet users will have their access summarily shut off for something they may or may not have done.

As Peter Kafka notes in a post at MediaMemo, this approach clearly serves the interests of ISPs, which are concerned about the amount of bandwidth file-sharing services consume. And it definitely serves the interests of the RIAA, since it allows them to strike out at the perceived menace of copyright infringement without having to even go to court. But it should be disturbing to anyone who thinks that individual rights and freedoms, including the right to be presumed innocent — not to mention the idea that the punishment should be proportional to the alleged crime — are worth more than the record industry’s desperate desire to cling to an antiquated business model.

12 Responses to “RIAA Drops Lawsuit Strategy for "Three Strikes" Plan”

  1. We have all read the stories of parents sued for hundreds of thousands of dollars because their teenage children file swapped music over the internet. In many cases, the parents were bullied into settlement, even though they may not have been guilty of anything. Over 35,000 individuals were sued for sharing music in violation of copyright law. The government should have ended this travesty a long time ago, but our political leaders are in the RIAA’s pocket for campaign donations. This list includes Barack Obama. I wish I could tell you the RIAA had come to their senses and realized the unfairness of what they were doing, but I can’t. They are stopping because it isn’t profitable any more.

    Music industry drops effort to sue song swappers
    The Associated Press

    The group representing the U.S. recording industry said Friday it had abandoned its policy of suing people for sharing songs protected by copyright.

    The Recording Industry Association of America said it instead would work with Internet service providers to cut abusers’ access if they ignored repeated warnings.

    The move ends a program that saw the association sue about 35,000 people since 2003 for swapping songs online. Because of high legal costs for defenders, virtually all of those hit with lawsuits settled, on average, for around $3,500. The association’s legal costs, in the meantime, exceeded the settlement money it brought in.

    The association said Friday it stopped sending out new lawsuits and warnings in August and then agreed with several leading U.S. Internet service providers, without naming which ones, to notify alleged illegal file-sharers and cut off service if they failed to stop. Full story here.

  2. I run a mid-sized ISP in Washington, and we have been getting notifications under the DMCA from RIAA, Sony, HBO, etc for years. Our policy is to pass the notification on to the customers. The customers usually reply back that they will remove the content, case closed. Sometimes they ignore, or don’t receive the notification, but unless we get a further request from the complainer, we don’t have to do anything other than notify.

    I am unsure what legal basis they have in thinking they can even request a three strikes policy, it certainly isn’t in the DMCA.

  3. This sounds like an area where the FCC needs to step in. The FCC has already battered companies for blocking P2P so it is an obvious step to say that you can not block someone’s Internet access completely. Especially where no clear rules are in place that allows a customer to protest and since millions of people now rely on their broadband connections for their phone services (think 911). Even when the phone co. turns someone off 911 still works.

    If all the RIAA has to do is make a claim to get someone knocked off of the Internet then they are really overstepping their bounds! Can’t wait for an ISP to make a stand so this can get cleared up in court. Of course the RIAA will keep pushing and once it looks like they are going to lose they will change tactics again, constantly skirting the letter and intent of the law. Someone should go after the RIAA for RICO violations.

    Doug K.

  4. This plan is eminently flawed for a number of reasons:

    1) ISPs don’t really know their own customers’ email addresses anymore. I have never used my ISP-assigned email address and NEVER check it. I do, however, have other email addresses that my ISP has no idea about and I like it that way.
    2) Once again, the RIAA is attempting to defer the costs of policing its flawed strategies and lack of a business model onto other companies. The cost of monitoring, printing & mailing letters etc. in their proposal is entirely borne by the ISPs. Nice!
    3) ISPs will not only have extra expenses — they’ll also potentially be foregoing subscription revenue.

    Most importantly, how could this possibly be effective? In my home I have the choice between wireless broadband, ethernet, ADSL, and Cable — and several different providers on each. Dedicated file sharers can hop from one to the other, or simply subscribe to service under the name of another household member. By the time the process is reset with the next ISP, your year-long ban is up.

    This would be bad for churn, increase customer support costs for ISPs, and inflate their customer acquisition costs. Were I still a cost-conscious Product Manager at a telco ISP, I would have one thing to say to the RIAA. It starts with an ‘F’ and it ends with an ‘uck off’.

  5. Only one problem with this plan is the ISPs will start to lose revenue every time a customer is kicked off .

    A batter plan would be to offer a “subscrption” like service where you file share as much as you like for a monthly fee like a collective licencing arrangement and make it a revenue sharing deal between the RIIA companies and any Indies that want to sign up and the ISPs .If you dont sign up then of course your ISP can kick you off .