By Bruce Gain for Intellectual Property Watch
Representatives from the Recording Industry Association of America (RIAA) have confirmed that the organisation has opted to suspend its strategy of suing individuals accused of illegal file-sharing in the United States and to instead work more closely with internet service providers to thwart copyright infringement, but some doubts remain. Details of the RIAA’s revamped campaign remain murky.

After five years and over 30,000 lawsuits targeting individuals in the United States, an RIAA spokesman told Intellectual Property Watch that leading US-based internet service providers (ISPs) have agreed to increasingly take action when put on notice by copyright owners that customers are engaged in illicit file sharing. The ISPs might, for example, send warnings to subscribers then later suspend services if the communications are ignored.

The RIAA spokesman also said the organisation is working with New York Attorney General Andrew Cuomo to form a broad framework for a solution that would involve graduated response tactics against alleged infringers and that would also reduce network congestion due to massive file distribution.

However, RIAA has not yet disclosed the names of the ISPs with which it said it has formed an agreement, which remains confidential. Nor has it specified the terms of the alliance with Cuomo (whose office could not be reached for comment). The RIAA also has not released a statement about its plans to end its lawsuit campaign.

The organisation’s spokespersons and published reports claim that RIAA and its affiliates have not filed lawsuits in recent months against alleged infringers, but some observers dispute these claims. “The press reports all contain misinformation. In fact, the RIAA has just started a flurry of hundreds of new lawsuits which will keep their lawyers busy, and the targets of the lawsuits in pain, for years to come,” Ray Beckerman an internet law attorney who has represented defendants RIAA and affiliates have sued, wrote to Intellectual Property Watch in an email response.

“First place, it’s a lie,” Beckerman said. “Reports in AP that no suits have been filed since August, in Wired that no suits have been filed for months, and in the Wall Street Journal that no mass litigation has been commenced since early fall, are all lies.”

Meanwhile, action taken by US ISPs against alleged illegal file-sharers is not new. Despite the Wall Street Journal and, subsequently, numerous other press outlets alluding to how the graduated response program in the United States is a new initiative, ISPs have been informing subscribers of alleged illegal file-sharing activity for several years.

A leading ISP, Cox Communications, has been actively communicating to customers acts of copyright violations through illegal file-sharing since the Digital Millennium Copyright Act (DMCA) took effect a decade ago, Cox Communications spokesman David Deliman told Intellectual Property Watch. “We use the same customer notification process for complaints from all copyright holders, whether it’s the RIAA, the MPAA [Motion Picture Association of America], or any others,” Deliman said.

Deliman also said Cox sends customers warning letters and works with subscribers extensively to resolve any allegations of copyright violations before “we even consider termination of their account.”

AT&T has opened negotiations with NBC Universal and Walt Disney to mitigate video file distribution and Comcast has initiated measures to limit file-sharing over peer-to-peer (P2P) networks.

European Approach

RIAA’s strategy to rely more on ISPs to apply pressure on consumers directly to thwart illegal file-sharing in the United States mirrors copyright-enforcement strategies in Europe. There, Virgin recording company, in conjunction with the British Phonographic Institute (BPI), has begun to send warning letters to customers whose accounts have been allegedly used to share copyright-protected music files. Under new measures initiated by the French government, ISPs in France will soon likely take a similar approach as their UK counterparts while other European countries may also follow suit.

The RIAA may have decided that relying on the ISPs, as opposed to suing individuals, represents the most viable solution in the United States where service providers have already quietly begun to take action, said Fred von Lohmann, a staff attorney for the Electronic Frontier Foundation (EFF), a California-based digital consumer rights group, said.

“The RIAA may be retreating to the status quo,” von Lohmann said. “They may be simply ready to put up with what the ISPs are going to give them.”

How the different ISPs may or may not change their interpretation of the DMCA mandate to take action against copyright violations over their networks in conjunction with the RIAA in the future remains to be seen, von Lohmann said. “The question mark is what will be the diversion from the status quo?” von Lohmann said.

Privacy concerns, retention of customer data, possible “blacklisting” of alleged file-sharers, lack of due process to contest the shutdown of internet accounts, and the nebulousness of how the DMCA is interpreted and complied with by the different ISPs pose concerns, von Lohmann said.

“It’s long overdue that they stopped the litigation,” von Lohmann said. “But the alternative does not hold much promise for the future either. Artists still do not get paid and it will not stop file-sharing.”

It has always been a matter of time before the RIAA ended its litigation campaigns, Beckerman said. “I’m not surprised, it was inevitable for them to stop their suicidal litigation campaign at some point,” Beckerman said. “It was just money down the drain, and was accomplishing nothing except moving them closer to bankruptcy.”

RIAA’s decision to forgo its litigation campaign and to form alliances with the ISPs in the United States will help to stop infringements of copyright-protected music files and free up bandwidth previously taken up by file sharing, said Patrick Ross, executive director of the Copyright Alliance. However, the issue now is to determine “how far does each ISP go in terms of going after the infringers?” Ross said. “But if you go after someone who is infringing, then I think you would be hard-pressed to argue that somehow that is in violation of [inter]net neutrality, because that is already a violation of the terms of use,” Ross said.

Multi-Pronged Approach

The RIAA has always contended that its lawsuit campaigns is part of a multi-faceted strategy to mitigate illegal file sharing, while the organisation says its program, taken as a whole, has served as a deterrent. Citing NPD Group statistics, the RIAA says the number of households using peer-to-peer networks to download music rose “modestly” to 7.8 million in March 2007 compared to 6.9 million households in April 2003 before the litigation began, while broadband penetration more than doubled during the period.

According to an RIAA survey, 37 percent of those polled in 2003 said making music available for free from a personal computer was illegal, while the RIAA now says the percentage of people who think downloading music for free is illegal is 73 percent.

Bruce Gain may be reached at info@ip-watch.ch.