How committed are ISPs to graduated response?

For years now, AT&T and Verizon signaled that they wanted to leave copyright enforcement to the government and content creators. What led them to reverse their position?

Sen. Patrick Leahy (left) speaks to Thomas Dailey, Verizon's general counsel, following a Senate hearing on online piracy in February. Greg Sandoval/CNET

As part of a plan to discourage customers from pirating films and music, some of the country's largest bandwidth providers announced last week that they will take punitive action against customers repeatedly caught in the act.

So far, most of the attention has been on the potential impacts to Internet users, but now some are asking how the major Hollywood film studios and four top record companies were able to convince the Internet service providers to take part. For years, executives from AT&T and Verizon have argued that enforcing copyright was up to the content creators and courts.

In a joint announcement last Wednesday, AT&T, Comcast, and Verizon said that they would begin issuing "alerts" to accounts accused by the movie studios and music labels of online piracy . Following the sixth alert, the Internet service providers (ISP) could choose to throttle down a user's connection speed or cut the account holder off the Web until they ceased illegally downloading music or films.

The agreement is seen as a huge victory for copyright owners.

Leading up to the announcement, there were few clues that the ISPs had warmed up to the idea of taking on new antipiracy duties. On the contrary, as recently as February, Verizon appeared as squeamish as ever about stepping into an enforcement role.

During a February hearing before the U.S. Senate Judiciary subcommittee investigating online counterfeiting and piracy, Thomas Dailey, Verizon's general counsel, told lawmakers that the company's management condemned the act of infringing intellectual property but cautioned them about believing bandwidth providers alone could solve the Web piracy problem. He suggested that a bill being considered in the Senate, which would hand the federal government the power to order ISPs to block access in the United States to overseas sites accused of infringing content, would place an undue burden on ISPs. A version of the bill, called the Protect IP Act, is supported by Sen. Patrick Leahy (D-Vt.), chairman of the Judiciary Committee.

In AT&T's case, Ars Technica dug up a letter sent from James Cicconi, the telecom's vice president of external and legislative affairs, to Victoria Espinel, the so-called U.S. copyright czar. Dated March 24, 2010, Cicconi wrote that AT&T is "sympathetic" to the plight of content creators and the threat of piracy but then he lists the many reasons his company and other ISPs are not the entities that should be enforcing copyright law.

Click on photo to read 'Top ISPs agree to become copyright cops' Greg Sandoval/CNET

The entertainment companies failed for at least three years to sway the big bandwidth providers to adopt a strategy that called for gradual ratcheting up of pressure on suspected file sharers.

So, why did the ISP execs change their minds?

All we know for sure at this point is that the entertainment companies recently began wielding some serious political firepower. CNET, which broke the news last month about the ISPs new antipiracy agreement, also reported that the White House leaned on both sides to work out a deal.

President Obama has waded into the copyright debate firmly on the side of copyright owners.

Andrew Cuomo, the governor of New York, also backs the entertainment companies on this issue and became involved in the negotiations with ISPs sometime in 2008 when he was the state's attorney general. Cuomo was key because at the time, he was coming off a successful attempt at convincing ISPs to filter for child pornography.

It appears that the ISPs saw that the political climate had changed. Powerful players in almost all branches of the federal government are pushing for them to get off the sidelines and to start piracy busting. So far, reaction even in tech press has appeared more muted than might be expected.

The Los Angeles Times technology section called the plan a "fair compromise." Nate Anderson at Ars Technica wrote: "As such approaches go, this one sounds fairly sane." The Center for Democracy & Technology and Public Knowledge said in statement that it had concerns about seizing away Internet access from consumers but also said the plan had the "potential to be an important educational vehicle."

What will be interesting to see is how the bandwidth providers react if customer opposition mounts, or what they'll do if they're challenged in the courts by the likes of the Electronic Frontier Foundation, a group that advocates on behalf of Web users and tech companies.

Corynne McSherry, an EFF attorney, has criticized the ISPs for agreeing to penalize customers on the word of copyright owners alone and without any judicial review. She said last week that the EFF is still evaluating the ISPs' plans and that a decision on how to proceed has not been made. She didn't rule out a lawsuit.

If it happens, I wouldn't be surprised to see the ISPs beat a quick retreat. Three long years of negotiations, critical public statements about being drawn into antipiracy efforts, the fact that the ISPs still refuse to terminate service permanently, and a PR strategy that telegraphed how afraid they are of a public backlash (trying to bury the punishments under six strikes and so-called educational aspects) signals to me that they don't have the stomach for a fight on this issue.

 

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