Should you fear new ISP copyright enforcers?

Big entertainment companies announced today that ISPs have finally agreed to create a digital roadblock against illegal downloading. Nobody is that naive to think this will kill piracy.

A partnership announced today between big entertainment companies and some of the nation's largest Internet service providers will not mean the end of online piracy. To be sure, the parties involved know this.

Andrew Cuomo, the governor of New York, helped broker the deal between ISPs and big entertainment companies. Cuomo said a partnership was good for the state and country. New York State Executive Chamber

The most savvy tech users and dedicated file sharers will continue to pirate content and perhaps there isn't any way to stop them. But the hope of Hollywood film studios and the four largest record companies is that the participating ISPs, which include Comcast, Cablevision, Verizon, and Time Warner Cable, can help discourage mainstream Internet users from sharing content illegally over the Web.

The participating ISPs have agreed to start cracking down on accused content pirates starting sometime next year. The program will begin with warnings to those accused by content creators of copyright infringement. Those who refuse to quit risk losing access to the Web until they do.

The thinking is that maybe the ISPs can help tip the scales in favor of legal services. Maybe a $7.99-a-month Netflix subscription or a 99-cent charge for an iTunes' song becomes more attractive if the cost of piracy is a slower Web connection or the complete loss of Web access.

But the ISPs came to this agreement, first reported by CNET last month, kicking and screaming.

For the past three years, many of the big ISPs have declined to adopt "graduated response" programs. That's the term coined by big media to describe when ISPs ratchet up pressure on people suspected of acquiring intellectual property without paying for it.

The respective trade groups for the top music and film companies, the Recording Industry Association of America (RIAA) and Motion Picture Association of America, naturally wanted the toughest penalties they could get. Originally they had asked that the ISPs adopt a "three-strikes" plan, which would would mean a user received three warnings from a bandwidth provider before service was suspended or terminated. The ISPs said no way.

(The ISPs') first loyalty should be to their subscribers. Not Hollywood."
--Corynne McSherry, EFF attorney

In the end, the ISPs held their noses and began looking for ways to cover themselves against PR hits. Instead of three strikes, the ISPs opted for six strikes. They also padded the program with so-called educational aspects, likely tossed in to help distract from the more controversial issues, such as suspending someone's Internet access. Still, there's no way to cover up the fact that participating ISPs have agreed to punish customers on behalf of content creators.

Those ISPs that have partnered with the music and film sectors have the option of issuing six warnings to a subscriber before moving to the "mitigation" stage. Way down in the press release announcing the agreement is the bit about how the ISPs will hobble the connection speeds of those accused of multiple offenses or completely cut off their Web connection until they stop infringing intellectual property.

The ISPs dread spooking subscribers, or to appear to be spying on them. It's possible the agreement would have never been completed had U.S. President Barack Obama and New York Gov. Andrew Cuomo, who got involved in the negotiations as early as 2007, not pressured both sides to cut a deal.

Cuomo, who was then New York's attorney general, got involved because he believed that it was good for the state for two of the leading industries to get along and help each other, Steve Cohen, Cuomo's chief of staff, told CNET today. Up until that point, the film and music sectors were in attack mode, accusing bandwidth providers of profiting from piracy. Cuomo recognized that a deal that benefited both sides could be reached without lawsuits or any serious government intervention, Cohen said.

To read news story about the agreement between ISPs and the big entertainment companies, click the photo. Screen shot by Greg Sandoval/CNET

Cuomo, like Obama, argues that piracy robs U.S. citizens of jobs and the nation's companies of revenue.

But not everyone believes that file sharing has hurt those who create content. Corynne McSherry, an attorney and director of intellectual property issues for the Electronic Frontier Foundation, a group that advocates for Internet users and tech companies, notes that scores of musicians have adapted to digital technology and are doing fine.

She argues that the new agreement creates more problems than it solves. Among her criticisms of the graduated response process are that someone's Internet access can be cut off without any judicial review. She noted that the ISPs and entertainment companies have said they will create an independent review process for those who claim to be wrongly accused. McSherry, however, is skeptical that anyone hired by those groups will be conflict-free.

Among McSherry's greatest fears is that this is only the first step. She sees the potential, now that big media firms have the ability to push ISPs into copyright enforcement, that they will continue to pressure them to keep ratcheting up the penalties against suspected file sharers.

Is McSherry sympathetic to the ISPs who have faced government pressure to do more on antipiracy? Not so much.

Related links
• RIAA drops lawsuits; ISPs to battle file sharing
• AT&T exec: ISP will never terminate service on RIAA's word
• U2 manager: 'Ultimately free is the enemy of good'

"I wouldn't be at all surprised to learn that the ISPs are under tremendous pressure and that's why they're knuckling under," McSherry said. "But their first loyalty should be to their subscribers. Not Hollywood.

"At the end of the day," McSherry said, "this is unlikely to accomplish much. All it will do is intimidate a lot of lawful users. Are we going to see the end of online infringement? I doubt that very much. It will be more valuable for the White House, ISPs and Hollywood if they found better ways to getting artists paid instead of focusing on punishment."

Correction 6:16 p.m. This story incorrectly identified the first name of New York's governor. His name is Andrew Cuomo.

 

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