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A year out, where's RIAA's promised ISP help?

The recording industry stopped suing fans for copyright violation in favor of partnering with Internet service providers. But the latter isn't happening, yet.

A decade after the rise of Napster and a year after promising a new antipiracy strategy, the Recording Industry Association of America appears to be floundering on the piracy front.

The plan adopted last year by the RIAA, the trade group for the four largest recording companies, in place of its controversial litigation campaign seems to have gone nowhere. The RIAA said at the time that it had struck partnerships with major Internet service providers, the Web's true gatekeepers, and that they would help choke off online piracy.

It was all supposed to be a done deal. The Wall Street Journal, which broke the news about the RIAA's strategy shift, wrote on December 19, 2008, that the RIAA had "hashed out preliminary agreements with major ISPs." According to the Journal story, the ISPs were supposed to join a deterrent program designed to gradually increase pressure on accused copyright violators. As part of the so-called "graduated response," RIAA officials told me that ramifications for repeat offenders would escalate, starting with the sending of multiple letters that could take an increasingly strong tone. Eventually, as the Journal noted, "the ISP may cut off their access altogether."

RIAA CEO Mitch Bainwol in a file photo. Declan McCullagh

Music execs had told me much the same thing and I wrote last year that AT&T and Comcast were testing their own graduated responses. But a year after the Journal's initial story, the number of ISPs that have acknowledged adopting the RIAA's graduated response program is zero. In addition, many of the big ISPs, such as AT&T and Comcast, have gone out of their way to deny that they would ever interrupt service to customers simply because they were accused of copyright violations by the film or music industries. To do that, they would need a court order.

Some ISPs, including AT&T, Comcast, and Verizon, appear to be sending greater numbers of their own warning letters--in addition to those sent by content owners--to customers suspected of file sharing. The letters typically notify customers that they have been accused of illegally sharing songs and informed them that such activity is illegal.

But here's the big question about the RIAA's graduated response plan: is it worth anything without a legitimate threat backing it up? It's difficult to believe that sending letters is enough of a deterrent.

Mitch Bainwol, the RIAA's chairman and CEO, acknowledges that his organization hasn't achieved all of the goals it laid out a year ago, but he says that the ISP strategy is well thought out, progressing, and has already seen dramatic results.

"We've seen a million notices [from ISPs to customers suspected of file sharing] go out over the past year and that is certainly meaningful," Bainwol told CNET last week. "Are we prepared to make an announcement that is broad in scope and cuts across ISPs? No. Are we engaged in significant discussions that we believe will ultimately prove productive? Hell yes."

Maybe so, but these deals were supposed to have been done or nearly done a year ago. What happened to those "hashed out preliminary agreements" that the Journal wrote about?

Missing teeth
Multiple music sources have told me over the past month the RIAA leaders were feeling pressure to drop the lawsuit campaign, but were also being lobbied by some at the labels to put some kind of deterrent in place, even if totally toothless. They didn't want the public to think there weren't any consequences to pirating music, even if the reality was exactly that.

"Are we prepared to make an announcement that is broad in scope and cuts across ISPs? No. Are we engaged in significant discussions that we believe will ultimately prove productive? Hell yes."
--RIAA CEO Mitch Bainwol

According to those sources, the announcement about the ISP strategy last December was little more than a scarecrow.

Bainwol didn't comment on that but did say: "The substance of our pivot to ISPs is in fact accurate. The broader arrangement that cuts across the ISP community is still out there to be tied down. There clearly are discussions going on."

The reason that some at the labels wanted an end to the litigation is that for years it brought down mountains of public scorn. The lawsuits were also expensive and RIAA's members wanted costs slashed, which happened earlier this year.

The decision was made to continue to pursue the suits already in the courts, but the widescale practice of suing individuals was over.

Here's the other reason that several of the music-industry sources say the RIAA acted before any deal was done: to fire a shot across the bow of some of ISPs that were dragging their feet. By spreading the word that the RIAA had sewn up a deal with a group of big ISPs, RIAA managers hoped they were ratcheting up the pressure to join, sources say.

They also turned to Andrew Cuomo, New York's state attorney general, to nudge the ISPs into fighting piracy in the same way he pushed them to combat child pornography, said two music industry sources. This not only rubbed some ISP execs the wrong way, but unlike with the porn problem, the law was all on the side of the ISPs.

Nothing in the Digital Millennium Copyright Act requires ISPs to adopt a graduated response or even send their own warning letters.

"I don't know that the (ISPs) are legally obliged to do it," said Jonathan Zittrain, a noted cyberlaw expert and author. "I don't know any ISP that has been sued over it...The industry has chosen not to provoke a fight."

One reason for that may be that many bandwith providers want greater access to top entertainment content. The best example of that is Comcast's proposed acquisition of NBC Universal. To many in the film and music sectors, it appears that the interests of entertainment companies and ISPs are aligning.

"We've seen great progress and great cooperation from many of the ISPs," Bainwol said. "Getting to a public uniform understanding about how we're going to work together is obviously an extraordinarily complicated endeavor...[piracy] is a problem that developed over years and a solution is going to take time but we're achieving progress toward that goal."

Some progress
To be sure, in some ways the music industry's digital strategy has never been in better shape. It's never been easier or less expensive to acquire music legally than it is at such sources as iTunes, Amazon, and Pandora.

The music sector hasn't obtained a three-strikes policy in the United States, but it's been much more successful in forcing ISPs based overseas to boot repeat copyright offenders from their networks. And some ISPs, including Cox Communications, established antipiracy policies long ago that were similar to the RIAA's graduated response. But since the U.S. is a tougher environment when it comes to discussing service interruption, has Bainwol altered his definition of "graduated response"?

"I'm not locked into any particular definition," Bainwol said. "I think the parties that are negotiating and having discussions about what kind of program is appropriate will define how you work a graduated response program. The question here is: Are we working with the ISPs? Will there be some kind of graduated response program, where the infringer is made aware when they're caught and also when there are escalating tensions.

"We'll be flexible about how we get to a deal," Bainwol continued. "We'll let others define the poles of the position."