Friday, December 19, 2008

RIAA Gives Up on Piracy Lawsuits, Embraces "Three Strikes" Rules

According to a report Friday in the Wall Street Journal, the Recording Industry Association of America (RIAA) has decided to give up on its practice of mass lawsuits as a way to deter illegal file-sharing. Instead the industry is apparently going to use a "three strikes" policy, similar to that under consideration in the E.U. and France.

The WSJ says that the RIAA is negotiating with ISPs over the "three strikes" policy. If the RIAA detects illegal file-sharing taking place, it will send an email to the ISP, and then:
Depending on the agreement, the ISP will either forward the note to customers, or alert customers that they appear to be uploading music illegally, and ask them to stop. If the customers continue the file-sharing, they will get one or two more emails, perhaps accompanied by slower service from the provider. Finally, the ISP may cut off their access altogether.
Very similar to the proposed European policy, with the additional throttling step, perhaps.

C|Net has obtained the text of the proposed email (if they've gotten far enough to draft an email already, perhaps things are further along than we might think!), (.PDF).

However, the RIAA would still reserve the right to sue file-sharers, though they expect such lawsuits to be rare. On the other hand, litigation currently ongoing is going to continue. This must make those hit in the last round of RIAA warning letters feel really good.

It also must one wonder if the RIAA will continue to prosecute Jammie Thomas. Thomas is the only plaintiff to go to trial, and was initially convicted of file-sharing in October of 2007, but a mistrial was declared by the original presiding judge, who said he erred in jury instructions. A nice, good-faith gesture might be to drop the retrial, which has already been scheduled for next year. Naah, they'll never do it.

But this begs the question: nothing (particularly technology) is perfect. The RIAA has in the past sued a family with no computer, and even a dead person. So what happens to those false positives (FPs)? Is there a "statute of limitations" on these reports?

Meaning, you're reported once (FP). Five years later another FP. Are you now up against the wall or has the first one expired? And don't think that if you are falsely accused it'll be easy to fix it. Ever try to fix a credit report?

I wonder if coffee shops with free wi-fi are suddenly going to see an influx of downloaders. Photobucket I'm not really serious about that, but hey, I wonder if any free wi-fi hotspots have been sued over downloading yet.

Finally, the RIAA (and MPAA) need to get it through their thick skulls: just as DRM has not stopped game piracy, they're not going to put a lid on file-sharing. As the EFF notes, estimates are that 20% of Americans are active file-sharers.

The industry needs to embrace technology, not fear it (yes, I know they do need to make money). It's not as though anything they've done so far has corked the leak in the dam.



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