Published March 26, 2009
Under pressure from the big record labels, several countries around the world are cracking down hard on illegal file-sharers with a "three strikes, you're out" policy — and the United States may be next.
The basics are simple: Get caught three times sharing files illegally, and your Internet access gets cut off.
But in a day and age when Internet access is almost as essential as a cell phone or electricity, should the music industry or Internet service providers [ISPs] have the power to determine who can and can't get online, particularly without criminal charges being filed?
And what if there's no legal recourse for the customer whose service gets cut off?
"In this country, you don't punish people with just allegations ... in Russia, it happens differently," says Gigi B. Sohn, president of Public Knowledge, a Washington, D.C., non-profit group specializing in digital rights.
"It gives the RIAA [Recording Industry Association of America] way too much power, but it's going to take acquiescence from the ISPs [to happen]," Sohn says. "I think it's unfair and un-American in many different ways. No copyright holder should have that much power based on an allegation."
The four major record labels — the EMI Group, Sony Music Entertainment, Universal Music Group and Warner Music Group — have been on the prowl abroad, convincing Ireland's Eircom Internet service provider to warn, and eventually cut off, repeat downloaders.
Eircom also vowed to block Web sites such as the Sweden-based Pirate Bay, which directs users to all sorts of illegal downloads.
In New Zealand, a new copyright law says an ISP must adopt and apply a policy that allows for Internet access to be terminated "in appropriate circumstances" for repeat infringers.
The French parliament is considering a law known as "Hadopi" (a French acronym for "High authority for the distribution of works and protection of rights on the Internet"), which would create a government agency to issue warnings to Internet subscribers whose IP addresses are used to illegally share copyright-protected material.
Meanwhile, the British government is pondering what may be a milder "graduated response" plan of its own.
In New York State, the RIAA and ISPs last summer began working with Attorney General Andrew Cuomo, who's acting as a broker between the two sides, on what's being characterized as another "graduated response" program.
Details are hard to come by, and the ISPs aren't talking, but the ultimate punishment for repeat infringers who ignore warnings might be termination of Internet access. Internet speed could be slowed for those who ignore warnings but haven't quite reached termination level.
"That is one possible outcome. That is not the only outcome," RIAA President Cary Sherman told FOXNews.com in an interview. "There's escalating sanctions of some sort, but precisely what they are is something to be negotiated. Certainly the suspension of an account is something that's on the table."
Until December, the RIAA had taken a very different strategy against people it suspected of sharing files. It demanded money from them on first offense, giving them a choice: Pay up now or be sued for even more.
Over five years, the lobbying group initiated legal action against some 30,000 people, forcing many of them to pay hundreds of dollars per shared song or to go to civil court — where the damages have approached $10,000 per song. (Many cases are still pending.)
Digital-rights activists countered that the RIAA had no way to prove who the infringers were, particularly if more than one person used an offending computer, and many universities and even some large ISPs refused to hand over names connected to the IP addresses the RIAA presented them with.
Sherman says the new approach should be more effective than litigation.
"It gives people warnings rather [than] suddenly finding themselves a target of a lawsuit," Sherman explained. "We think this could be a very effective way in letting them know what they do online is not anonymous."
He points out that more infringement notices can be sent to more people, particularly those "casual downloaders" whom the RIAA wants to convince to go to legal online outlets such Rhapsody, Amazon.com or Apple's iTunes Store.
The working theory is that if people are warned, they'll likely stop downloading illegally.
In theory, the RIAA would give cooperating ISPs the IP addresses of alleged file-sharers. It would then be up to the ISPs to send notices to those customers — and possibly to cut them off if they continue to download or share files illegally.
In other words, one private body would provide the evidence, while another would judge the case and carry out the sentence. There might be no governmental entity involved at all.
It's not clear how the ISPs might shield themselves legally, but a simple addition to the customers' broadband service contracts might take care of it.
In shifting the burden of enforcement and punishment to the ISPs, the RIAA argues that it's in their best interests to control illegal downloaders who take up a lot of bandwidth to the detriment of honest customers. One reason ISPs may be willing to get on board with this is to cut down on those using up a lot of bandwidth for peer-to-peer activity.
(A counter argument is that legal music downloads take up just as much bandwidth as illegal ones, and any music file is minuscule compared to the huge video files being streamed legally by Hulu.com and sold by Amazon and Apple.)
Sherman says "a number of leading ISPs" have signed on, but he can't divulge which ones. CNet reported that AT&T and Comcast may be involved.
ISPs, in the past, haven't exactly jumped at the chance to be copyright cops.
"We have consistently said that automatic cutoff of our customers is not something we would do," AT&T spokesman Michael Balmoris told FOXNews.com when asked if it was joining the RIAA effort.
A spokesman for Comcast said the company would not change its policies.
"Comcast, like other major ISPs, forwards notices of alleged infringement that we receive from music, movie, videogame, and other content owners to our customers," he said via e-mail. "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."
The key word in the AT&T statement is "automatic"; no one, including the RIAA, has suggested first-offense termination for infringers.
Digital-rights activists worry that out in the electronic frontier, where the letter of the law hasn't caught up, there will be no one to protect the little guy.
"We ... have now an increasing amount of power passed on to the hands of the copyright holders," says Danny O'Brien of the Electronic Frontier Foundation, a San Francisco-based digital-rights group.
"It's cutting out the middleman, which the Internet is very good at, except in this case the middleman is a judge," O'Brien continued. "All they have to do is accuse you three times and then you're off. There's no checking to see if the evidence is good."
Sohn thinks termination "certainly" shouldn't be a punishment for three violations.
"If I have a couple of drunk-driving violations, you get your license taken away ... but this is different," she explains. "We're not talking about convictions. We're talking about allegations. Nothing is proved. That's what makes this even worse."
Up until now, when the RIAA sued a private citizen, he could take it to an open courtroom, although it might take a lot of money to go up against the record labels. But under the "graduated response" system, it's unclear who will serve as judge or jury to assess the charge of copyright infringement.
Sherman said the RIAA "completely" agrees that the accused need a way to challenge the accusations against them. The details just haven't been made public yet, he said.
"We are planning to address that by having a mechanism for having someone who is improperly identified having a place to go to have the issue resolved," he said.
But "planning" doesn't appease everyone.
"This is an insanely dangerous and disproportionate proposal," Internet gadfly Cory Doctorow wrote recently on the influential blog, Boing Boing, discussing the "three strikes" policy in Ireland. "After all, you don't hear the record labels offering to have their [own] Internet connections cut off if they send out three false copyright accusations."