Intellectual Property Law

Observations from the Three-Strikes Rumor Storm

By richard

Earlier this week, reports that ISPs were going to be cooperating with the RIAA's "three strikes" plans triggered alarm bells. Three-strikes proposals to kick customers off the Internet for alleged file-sharing have struggled to find acceptance across the world, so it seemed unusual for American ISPs to be contemplating plans that would result in the termination of paying customers. Major ISPs must have seen the storm clouds of user dissent brewing as well, as AT&T and Comcast quickly issued emphatic denials to the rumors that they were interested in becoming IP enforcers for copyright holders. Though there appears to be no need for immediate concern that you, the customer, could be targeted for disconnection, the rumors and subsequent responses from ISPs reveal important information about the state of play for three strikes, or "graduated response," as the entertainment industry prefers to call it.

The worries began when ISP representatives at a digital music conference talked about cooperating with the RIAA and forwarding copyright infringement notices from the RIAA onwards to customers. Soon after, clarifications came spilling forth: AT&T is participating in the RIAA plan, but the notice-forwarding scheme is a geographically limited trial program that has no punishment component; Comcast has been forwarding notices of alleged infringement for years, but won't be disconnecting users; Cox has been forwarding notices and occasionally limits or disconnects users, but not because of the RIAA.

For now, it seems like most major ISPs are not interested in disconnecting customers' Internet connections at the entertainment industry's request. In a statement, Comcast said, "While we have always supported copyright holders in their efforts to reduce piracy under the Digital Millennium Copyright Act (DMCA), and continue to do so, we have no plans to test a so-called 'three-strikes-and-you're-out' policy." Similarly, an AT&T spokesman told Wired, "We are not suspending or terminating our customers. We are not testing a three-strikes plan."

It's a good thing that ISPs don't seem to be considering customer termination yet, and ISPs are right to suspect that cooperating with the RIAA's desires for three strikes will make them incredibly unpopular with the public. But though there's no specific reason to think that ISPs will escalate to sanctions and termination, we've heard early denials before that turned out to have masked some bad behavior. So, now might be a good time to reiterate that transparency is the best policy -- we shouldn't have to reach the point of protest before learning about ISP policies that affect our rights as users and customers.

The fact that there's an RIAA "program" being architected means that broadband providers are already facing considerable pressure from the music industry to turn on their customers. But from this episode alone, it's clear that all eyes are on the ISPs. They should carefully consider the business consequences of cooperation with the RIAA's whims.

Full post as published by Electronic Freedom Foundation - Deep Links on March 27, 2009 (boomark / email).