ISPs Rolling Over for RIAA?

NEW YORK -- Major Internet Service Providers including AT & T have reportedly made deals with the Recording Industry Association of America to address piracy concerns.

According to the Associated Press, AT&T Inc., America's largest ISP, will start sending warnings to its subscribers when record labels and movie studios claim they are uploading, downloading or exchanging pirated material.

The move was confirmed by AT&T Washington, D.C. executive Jim Cicconi, who said the company will expand a trial program conducted with movie studios last year. The corporation is testing a system with the RIAA, and plans trial runs with other copyright organizations as well.

Other ISPs, including Cox, Comcast and Verizon, already send notices to users who allegedly traffic in pirated content, which could result in possible disconnection, depending on the ISP. But those letters are a point of legal contention.

While rights holders may identify Internet users based on their individual ISP address, they cannot access the subscriber's name and other information without ISP cooperation.

The public outcry over targeted individuals such as college students and grandmothers, and even a deceased person, has not been good for the RIIA or music business. As a result, the RIIA recently said it would drop lawsuits for the most part and instead work with ISPs to develop a warning and disconnection policy for repeat offenders.

Cox, the fifth-largest ISP in the U.S., sends thousands of notices monthly and has already cut off some customers, according to AP.

Comcast, on the other hand, also forwards warnings but does not cut off Internet access, no matter how many warnings are sent, reports eCommerceTimes.

"Anybody who disagrees with the proposition that Internet Piracy is on the rise and continues to become more complex is simply lying to himself," adult industry attorney Corey D. Silverstein told AVN. "The simple truth is that for years the RIAA has been trying to curb the amount of piracy by utilizing various techniques, many of which have had little to no effect. The courts on numerous occasions have found ISPs not responsible for the activities of their customers so long as they were not an active participant in the file transfer.  The suggestion that some ISPs are participating in some form of 'three warnings and you're out' rule makes little sense and only subjects the ISP to potential liabilities."

Silverstein said that compliance with RIAA demands could expose telecoms to potential lawsuits. 

"What criteria is the RIAA utilizing to determine whether someone illegally downloaded or uploaded copyrighted content? Are the ISPs simply adhering to the RIAA's determination?" Silverstein asked. "As has been correctly pointed out, the RIAA has historically made ridiculous accusations including alleging that a dead person has traded material protected by copyright.  The mere suggestion that an ISP would accept the determination of the RIAA is both dangerous to the ISP and completely removes an individual's due process rights -- an opportunity to defend himself.  Imagine what it would be like if anyone accused of a crime was not entitled to a defense?  This is exactly what the RIAA and the participating ISPs are doing."

The only situation Silverstein can imagine where an ISP like Cox or AT&T would participate in such an arrangement would come out of some sort of political haggling between the ISP and the RIAA. 

"The ISP is putting itself at risk in engaging in this type of relationship with the RIAA," he said. "It would only be a matter of time before the relationship between the ISP and the RIAA breaks apart because the ISP misses a warning or changes its mind about continuing to adhere to the RIAA's determinations. 

Silverstein sees Comcast's approach to having a policy whereby they refuse to cutoff a customer's Internet access, regardless of many warnings sent, as a "good step and a good policy."

"But why even bother when the customer knows that whether they get warned one time or a million times their service won't be disconnected?," he said. "It's still not enough though, what investigative measure is Comcast taking and what opportunity is an accused given to respond?

Silverstein represents at least a dozen different ISPs and said in no circumstances would he recommend that they adhere to the RIAA's latest proposals. ISPs have already been granted protection by the courts, he said. 

Also weighing in was Jeffrey J. Douglas, First Amendment Attorney Chair for the Free Speech Coalition, speaking to AVN Online in his private capacity.

"Whatever benefits the RIAA believes it can gain by getting ISPs to threaten termination of Internet access accounts are likely to be short-lived, and seem highly unsuitable for the adult industry," Douglas said. "There are so many ISPs, the dedicated consumer will surely find it simple to switch ISPs."

"However, even if the actions do have the desired deterrent effect, it seems quite inappropriate for the adult industry," Douglas added.  "Privacy concerns are very significant for adult entertainment consumers.  One would think that a backlash against Internet consumption of adult materials would be bad for the industry, and if people believed that their consumption was being tracked by ISPs, consumers would be frightened about getting adult content, no matter how legitimately."

Another concern is who is maintaining all the information that the RIAA is compiling with any participating ISP? Also, what other purposes is that information being used for?

"If all the information is being collected another government agency may seek access to that data which would eliminate privacy rights," Silverstein said.

Douglas sees "three-strikes" as a simple-minded approach that could violate civil rights.

"It should be a matter of great concern that there is in the described plan, no evidentiary standard, no due process; just three complaints by a trade group are enough for a citizen to lose a valuable resource," he said.

So, even as the adult industry seeks to curb piracy just like the mainstream film and the music businesses, more discussion and evaluation is needed regarding policies and approaches.

"Given the enormous losses being experienced by all content creators, whether audio or visual, solutions must be found.  This does not appear to strike a good balance, especially for adult content," Douglas said.

Meanwhile, Silverstein is wary of the RIAA's actions past, present and future as well.

"Unfortunately, while this particular RIAA attempt at 'Piracy Control' will not gain the support of many, if any more ISP's, I would not be surprised to learn about additional RIAA tactics with similar characteristics that ignore privacy, free speech and due process."