Demanding the Impossible – RIAA Demands ISPs Fight Piracy

Trying to get the gatekeepers of the internet – mainly the Internet Service Provider – to fight against ‘copyright infringement’ is nothing new.

Note: This is an article I wrote that was published elsewhere first. It has been republished here for archival purposes

After several countries jumped on board to call on US ISPs to fight copyright infringement.

It seems like getting things like Internet Service Providers has become all the rage for the copyright industry around the world. The RIAA posted a press release saying the folowing:

Referring to legislation introduced by Reps. Ed Markey (D-Mass.) and Chip Pickering (R-Miss.), Bainwol said that the two Congressmen deserved enormous credit for “properly recognizing the important distinction between lawful and unlawful content. Our view is that the marketplace is generally a better mechanism than regulation for addressing such complex issues as how to address online piracy, and we believe the marketplace should be given the chance to succeed. We are encouraged by some of the recent dialogue between content companies and ISPs about this problem. If effective marketplace solutions cannot be reached soon, however, then government regulation may well be necessary.”

There is a lot being said here. For one, It’s highly likely that Bainwol is referring to instances surrounding AT&T earlier this year where it is suggested that AT&T would start filtering the internet. At the time when we reported this, the question came up over the Digital Millennium Copyright Act which are, ‘Doesn’t the DMCA have a safe harbor provision?’ and ‘Is AT&T simply forfeiting this provision by filtering the internet?’ This latest move may make the idea of the Recording Industry Association of America simply endorsing the idea more likely. As many know in the net radio industry in the United States, sometimes being an ally with the major record labels can suddenly end when they feel they need more money.

Whether or not major record labels will end up doing to Internet Service Providers what they did to web radio which does affect the major radio industry as a whole as well, is beside the point. The point is, the moves in the United States by the RIAA is simply a continuation of a trend that has been touched on in the European Union before.

Earlier this year, there was a proposal in the European Union to get ISPs to fight piracy. The proposal specifically stated that ISPs should employ filtering technologies onto their network – precisely the kind of suggestion in the AT&T debate earlier.

If one were to consider the idea that the debates going on internationally will happen similarly in the United States, it makes the debate far more predictable. The major record labels will demand immediate action and possibly go further to find some sort of policy to ban file-sharers from the internet. Why shouldn’t they? It happened in France, Japan, Australia and Germany to name a few countries. It may be possible to get a person that has a connection to a high profile artist just like U2’s Band Manager in Britain thrown into the mix. The debate will turn to a question of access to culture and there will be opposition just like Swedan’s motion to strike down the three strike policy. Whether or not things go well in congress, it’s highly likely that the major record labels will resort to legal tactics just like the Irish music industry trying to sue ISPs for copyright infringement taking place on the networks.

Of course, this is just one possible outcome. So far, the debate has taken a very similar course of action thus far, lending credibility to the international possibility.

One thing to consider is that only two industry solutions have ever presented themselves publicly. Either users are banned from the internet or filtering technology is proposed to be employed. The idea of banning someone from the internet faces a serious political uphill battle given that there are at least two factors to consider:

1. As the Swedish proposal points out, the internet provides a vast amount of culture. If enough people are cut off from the internet, online businesses would be adversely affected like Amazon, eBay, etc. (not to mention all the e-record labels that have sprung up over time that have likely gained a lot from online exposure – Beatport being one such site that features a lot of internet labels) So it’s not just cultural deprivation that could occur. As companies like Skylink know all too well, copyright holders are no stranger to targeting businesses that innovate.

2. Then there’s also the factor that P2P lawsuits have proven to be something to be perfected as Marie Lindor knows or people who know Mrs. Walton knows. On top of this, there has been the question over whether the RIAA’s investigator is even legal in the first place.

Now, installing filtering technology on Internet Service Providers is the other solution the industry has thought of. Like the first, the concept is deeply flawed, but for technological reasons. This idea was already tested by the French music industry last month and the results were not exactly perfect. This goes over top of the fact that the best ‘less than perfect’ results were on unencrypted packets. A few of the protocols were tested with encrypted traffic and BitTorrent as well as FileTopia were the only protocol that couldn’t really get past the best of the best of the filters. Encrypted WinMX traffic wasn’t tested and, as a WinMXWorld operator told us in an interview, even WinMX has encryption. It leads one to wonder if even the best of the technology industry can’t tackle P2P traffic, is such a feet possible – especially since encryption is continually being improved upon. Of course, the notion of filtering P2P traffic doesn’t even address legitimate P2P traffic.

What about the idea of network neutrality? was quick to pick up on that point, noting that the RIAA doesn’t want network neutrality to ‘get in the way’ of their demands. It’s a call that is an echo of the MPAA (Motion Picture Association of America) last month.

So which way will it be? Filtering or banning? The MPAA offers a hint on which way it will likely go. In December of last year, the MPAA suggested that filtering would be in the ISPs best interests. Since the RIAA is keen in following the MPAA’s lead on these matters, it won’t be a surprise if they demand similar actions.

Two equally flawed solutions, one more likely than the other and a demand to basically scrap one of the Digital Millennium Copyright Acts good aspects (safe harbor provisions) to fulfill a fools errand. It seems likely that American ISPs have a lot to lose and little to gain.

Drew Wilson on Twitter: @icecube85 and Google+.

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