Big media fails to turn ISPs into copyright cops

Last month marked the second anniversary since the Recording Industry Association of America, the trade group representing the four largest music labels, stopped filing copyright lawsuits against people suspected of illegal file sharing.

At the time, the RIAA said it would seek help in copyright enforcement efforts from Internet service providers, the Web's gatekeepers, which are uniquely positioned to act as copyright cops. Under a proposed RIAA plan, ISPs would first issue warning letters and gradually increase pressure on customers who illegally shared songs, and even suspend or permanently terminate service for repeat offenders. RIAA execs said then that some ISPs were weeks away from announcing the adoption of what they called a "graduated response" program.

Two years later, we're still waiting. Not only have the largest ISPs declined to cut off accused file-sharing customers but one ISP, Time Warner Cable, did more than anyone to derail a litigation effort launched this year against file sharers by independent and adult-film studios. An RIAA representative declined to comment for this story

Instead of befriending the entertainment industry on copyright issues, the major bandwidth providers appear to be a foe. The top ISPs have conspicuously failed to support an antipiracy bill introduced in the U.S. Senate--and backed by the major entertainment sectors--late last year. If passed, the Combating Online Infringement and Counterfeits Act would authorize the government to shut down U.S. Web sites suspected of piracy as well as order ISPs to block access to similar sites overseas. Two ISP execs, who spoke to CNET on condition of anonymity, were dismissive of the legislation and are skeptical it will pass.

Comcast as content owner
Entertainment execs brush all the bad news aside. They say the same thing they've said for two years: Just wait. They say there's a big announcement from some of the major ISPs coming around the corner. This time, they might be right about at least one ISP.

A year ago, Comcast announced it would pay $30 billion to acquire NBC Universal, parent company of one of the six largest Hollywood film studios and major TV networks. The deal for NBC Universal, home of "The Bourne Identity," and TV show "30 Rock," was supposed to be completed by the end of 2010 but it continues to draw scrutiny from regulators.

Nonetheless, the acquisition is expected to go through this year and that means Comcast has bet big on content. Film industry insiders say Comcast, with nearly 17 million high-speed Internet customers, has indicated it plans to get tough on piracy, though nobody seems to know what that means. A Comcast representative wasn't immediately available for comment.

Beyond Comcast, however, there still appears to be little appetite for a get-tough-on-piracy attitude at competitors such as AT&T and Time Warner Cable. The reasons the RIAA and the Motion Picture Association of America, which has also pitched the ISPs on a graduated response, have failed to sell their program to the ISPs are varied: ISPs don't want to alienate customers, the costs of implementing the plan are potentially high. What it boils down to is there are very few benefits for ISPs if they fight piracy and few consequences if they don't, insiders say.

The bandwidth providers are bigger than their entertainment counterparts, wield more power in Washington, and much of the public supports them on this issue. The big ISPs are more than capable of pushing back on the entertainment companies.

Underestimating ISP power
Evan Stone, a Dallas-based lawyer who this year began filing suits against suspected film pirates on behalf of porn studios, learned this the hard way. After filing a lawsuit last year on behalf of Larry Flynt Publications, the adult-entertainment empire that includes Hustler magazine, Stone needed to obtain the names of the people he accused of pirating his client's films. First, he retrieved the Internet protocol addresses belonging to people he accused of illegal file sharing and then asked ISPs to identify the owners of the IP addresses.

Time Warner Cable informed him the company would hand over names of only 10 subscribers a month. Stone seethed. "If you're a pirate in these times," Stone told CNET, "TWC is the ISP to have."

But that was only the start of his troubles. When he pressed TWC to hand over more names, Larry Flynt Publications cut ties with him. While it's hard to connect the dots, there's no doubt TWC had leverage since some of Flynt's movies are distributed over TWC's channels.

Stone "wanted us to put pressure on the cable operators, but it's not our goal to go after them," Michael Klein, Larry Flynt Publications' president, told AVN, a publication that covers the adult-film sector.

In a similar case, TWC offered to provide a minimum of 28 names to Dunlap, Grubb & Weaver, the law firm that represents a dozen independent film companies that filed copyright complaints against thousands of alleged film pirates this year. At the rate TWC proposed, it would take years for the filmmakers to obtain all the defendants' names. The courts overseeing the cases signaled they wouldn't hold up the legal process for this. As a result, Dunlap was forced to drop thousands of defendants from one of the complaints.

Meanwhile, Stone said other major ISPs have resisted helping him discover names. He said his other adult-film clients are prepared to take the ISPs to court and that the Digital Millennium Copyright Act is on their side. The DMCA requires ISPs to take specific action with regard to repeat copyright infringement committed by their customers or else lose protection from liability under the law's safe harbor provision.

So, do ISPs need the big film studios and music labels or is it the other way around? Some regional ISPs have booted accused film and music pirates off their networks. One of the more aggressive appears to be Qwest. But similar to Comcast's situation, Qwest has a financial stake in the entertainment industry. The company, which operates in 14 western states, is owned by tycoon Philip Anschutz, an investor in the movie "The Chronicles of Narnia," and owner of the Regal Entertainment Group, the largest theater chain in the world.

Self-interest, it seems, is perhaps the only way to get an ISP to play cops and robbers with its own customers.