Digital Media

The U.K.'s Virgin Media could start suspending persistent file sharers on a temporary basis, using information provided to it by Universal Music.

The ISP announced on Monday that it would, before Christmas, launch an all-you-can-eat music download service for its users, based on a monthly subscription fee. The tracks will all be DRM-free.

"In parallel, the two companies will be working together to protect Universal Music's intellectual property and drive a material reduction in the unauthorized distribution of its repertoire across Virgin Media's network," a statement read. "This will involve implementing a range of different strategies to educate file sharers about online piracy and to raise awareness of legal alternatives. They include, as a last resort for persistent offenders, a temporary suspension of internet access."

Virgin pointed out that "no customers will be permanently disconnected and the process will not depend on network monitoring or interception of customer traffic by Virgin Media."

A spokeswoman for Virgin told ZDNet UK on Monday that the suspensions "could be as little as five minutes, an hour or a day." She said the idea of suspensions was very much in the process of being worked out -- they may not even happen -- and would only be launched on a "trial" basis.

As for how Virgin will know which persistent file sharers it should be suspending, the spokeswoman said this knowledge would be derived from information coming from the record company.

Universal will use technology from the Danish antipiracy firm DTecNet to scour file-sharing networks -- not Virgin's own network -- and log the IP addresses of "persistent" file sharers, along with the time of the transfers in question. That information will go back to Virgin, who will use it to identify the file sharer and begin warning them of possible action that could be taken against them.

DTecNet has already been working with U.K. content companies for some time to do much the same thing, and is also working with RIAA in the United States.

Virgin's spokeswoman did not give any further details of the number of warnings a persistent file sharer would get, the exact pricing of the music service (although ZDNet UK understands it will be somewhere around the cost of two CDs a month) or which other record companies Virgin is in talks with regarding a similar service.

For the latest on the the furious debate going on about file sharing and Net neutrality in Europe right now, check out this story we posted last week.

David Meyer of ZDNet UK reported from London.

The French National Assembly ignored a vote last week by the European Parliament and approved its "Création et Internet" three-strikes bill on Tuesday.

The measure supported by French President Nicolas Sarkozy punishes digital pirates by suspending Internet service if they are caught illegally sharing copyrighted material. The vote comes a little more than a month after the same government body rejected the proposal.

It seems the vote by the French Assembly is in direct opposition to the European Parliament, which last week passed a measure prohibiting EU governments from terminating a user's Internet access without a court order. The European Parliament also adopted an amendment that said, "Internet access is a fundamental right such as the freedom of expression and the freedom to access information."

The bill passed in France's National Assembly, the lower house of the French Parliament, by a narrow margin of 296 to 233. The legislation essentially creates a new government agency known as HADOPI (the Haute Autorité pour la Diffusion des Oeuvres et la Protection des droits sur Internet), which will be tasked with sending notices to illegal file sharers.

The way it would work is that suspected offenders would receive two warnings about their illegal activities and on the third suspected offense, their Internet access would be cut off for anywhere from two months to a year. Users will also be put on a "three-strikes" blacklist so that they can't sign up for service from another ISP.

The legislation has proven to be quite controversial in France and throughout the world. It is considered one of the most aggressive digital antipiracy regulations out there, which has helped it win the support of the music and movie industries.

But consumer and free speech advocates have opposed the passage of such legislation, arguing that it denies accused Internet pirates the right to challenge the government's charges in court. Opponents of the legislation also fear that it will pave the way for governments to violate its citizens' personal privacy rights.

The bill had been expected to pass the General Assembly in France in early April, but Socialists, who opposed the measure, rallied at the last moment, and surprisingly defeated the measure.

It was reintroduced to the assembly in late April and was debated and discussed until the vote Tuesday.

Even though the entertainment industry for years has lobbied for more active policing of the Internet, France is one of the only countries to put together such stringent legislation. Other countries, such as the United Kingdom and the United States, have not introduced strict legislation yet, but instead are encouraging partnerships between ISPs and the entertainment industry to fight piracy.

At least one major ISP in the U.S., AT&T, has already agreed to work with the music industry by sending notices to consumers suspected of illegally distributing copyrighted content. And in the U.K., ISPs have agreed to help the entertainment industry fight piracy in lieu of new legislation.

But other countries, such as Sweden are also taking a heavy handed approach to fighting digital piracy. France's strict piracy legislation comes less than a month after a Swedish court found the founders of the peer-to-peer site The Pirate Bay guilty of infringing copyright. The four defendants were each sentenced to a year in jail and ordered to pay 30 million Swedish kronor ($3.6 million) in damages to copyright holders. The Pirate Bay has already been mentioned as one of the sites that could be easily taken out under the new French law.

Updated at 5:05 p.m. PDT to include explanation of RIAA's graduated response, quotes from RIAA, as well as information about how some ISPs had already implemented their own type of graduated response.

Jim Cicconi, a senior executive vice president at AT&T, says much has been written about his company's relationship with the music industry and some of it is flatly untrue.

This much at least Cicconi wants customers to understand: "AT&T is not going to suspend or terminate anyone's policy without a court order."

On Tuesday, Cicconi told attendees of the Leadership Music Digital Summit that the ISP has begun issuing warning notices to people accused of pirating music by the Recording Industry Association of America. The RIAA, the trade group representing the four largest music labels, said in December that it had received cooperation from some large Internet service providers. CNET reported Wednesday that besides AT&T, Comcast and Cox Communications were also working with the music industry.

There has been some confusion about what the RIAA's graduated response program involves. The program could include suspension or termination of service for repeat offenders. It's up to the ISP to decide. But there are also other forms of escalating responses, such as the sending of multiple letters. Some of the notices could take a stronger tone or perhaps the ISP might follow up with a phone call.

Ideally for the the RIAA, the graduated response would culminate in a temporary suspension of the account for chronic offenders. Some ISPs have balked at that step, but the RIAA is still encouraged by discussions it's had with the ISPs so far.

"We're pleased to be in constructive discussions with several ISPs," said an RIAA spokesman. "We're making important progress, and doing so in a manner consistent with everyone's respective priorities. We're grateful that some of the industry's leading executives came to Nashville and talked through these important issues."

CNET News reported Tuesday evening that Cicconi said AT&T had begun issuing warning notices to people accused of pirating music by the RIAA. The Digital Millennium Copyright Act of 1998 has mandated that ISPs forward those letters to people accused of violating copyright. But AT&T has begun sending its own "cover letter" along with the RIAA's cease and desist notice, according to a company representative. Cicconi confirmed on Wednesday that those letters began going out last week. CNET also reported that in the notices sent to customers was language informing them that the company had the right to terminate service. Cicconi again confirmed that, but said the clause wasn't much more than legal boilerplate.

"It's a standard part of everybody's terms of service," Cicconi said. "If somebody is engaging in illegal activity, it basically gives us the right to do it...We're not a finder of fact and under no circumstances would we ever suspend or terminate service based on an allegation from a third party. We're just simply reminding people that they can't engage in illegal activity."

Cicconi said the company began testing this kind of "forward noticing" late last year and even experimented with sending certified letters. Cicconi said the notices worked. The company saw very few repeat offenders.

The RIAA is encouraging ISPs to strengthen their responses to piracy. Some ISPs, such as Cox, says it had already implemented a policy very similar to what the RIAA is asking for.

Comcast said Wednesday afternoon that it hasn't changed its policy. An executive who spoke at the same conference as Cicconi told the audience that the company has sent 2 million notices on behalf of content owners. A company representative said the company has no plans to test "a so-called 'three-strikes-and-you're-out' policy."

But music industry sources told CNET that Comcast has agreed to cooperate with the RIAA in other ways.

But what happens to chronic offenders? Cicconi said that his company will only send notices and that if a content owner wants more done, they need to see a judge.

"What we do is send notices and keep track of violations and IP addresses," Cicconi said. "It's our view that any stronger action has got to rest with the copyright owner...That's what the courts are there for."

Cicconi raises some important questions. How many ISPs are willing to cut off a customer's Internet connection without a court order, and how effective is the RIAA's graduated response program without one?

Note to readers: Have you received a warning letter from AT&T or another ISP? If so, e-mail me by clicking on the link in my bio below. Please include your contact information. I won't reveal your name in any story if that's what you prefer.

Update: 11:37 a.m. PDT To include quotes from a Cox spokesman.

Update: 4:05 p.m. PDT To include Comcast's statement that the 2 million notices sent out was not part of any new policy.

The Internet service providers that have agreed to work with the recording industry to battle illegal file sharing are starting to come forward.

Joe Waz, a senior vice president at Comcast, the nation's second largest ISP, told a gathering of music industry executives that the company has issued 2 million notices on behalf of copyright owners, according to multiple people who were in attendance.

Comcast said Wednesday afternoon that the 2 million notices Waz referred to were part of the company's standard practice and not a new policy.

"Comcast, like other major ISPs, forwards notices of alleged infringement that we receive from music, movie, videogame, and other content owners to our customers," Comcast said in a statement. "This is the same process we've had in place for years--nothing has changed. While we have always supported copyright holders in their efforts to reduce piracy under the Digital Millennium Copyright Act (DMCA), and continue to do so, we have no plans to test a so-called 'three-strikes-and-you're-out' policy."

Comcast's Joe Waz, in a photo from March 2008.

(Credit: Declan McCullagh/CNET)

Waz made the comments Tuesday while part of a panel at the Leadership Music Digital Summit in Nashville. This was the same event where an AT&T executive told the gathering that the nation's largest ISP was cooperating with the Recording Industry Association of America by sending notices to customers accused of illegal filing sharing. The letters are part of a trial program, the executive told the audience.

In addition, sources confirmed that Cox Communications is also assisting the RIAA in the group's new campaign to use ISPs to help discourage consumers from pirating songs.

In December, the RIAA shocked music fans by announcing the termination of a years-long strategy of filing copyright lawsuits against individuals. Instead, the lobbying group for the major recording companies would seek the help of Internet providers. The RIAA said it had lined up a group of large ISPs to help, but declined to disclose which ones or how many.

To copyright owners, the shift in strategy is a victory. For a long time, people in the music and film industries have complained that broadband providers were profiting from piracy. Many in the entertainment industry have called on ISPs to lend a hand in plugging up the flow of illegal content.

To those who advocate for Internet users, however, any plan that threatens to shut off someone's Internet access without hard evidence is unfair. RIAA leaders have said that the group's graduated response program would include punitive action for repeat offenders, which could include suspension or even termination of service. RIAA managers say they support due process to protect people from being falsely accused. But what the due process looks like has yet to be determined.

Comcast was careful to state that it isn't considering terminating customers' service.

An AT&T spokeswoman said that the ISP has not threatened anyone with the disabling of service but acknowledged that warning letters sent to customers, the company says it reserves the right to terminate service.

She said the company sends a letter from the RIAA and adds its own cover letter. The company informs the customer that the problem could be that a teenager in the home has downloaded unauthorized material or that someone else is doing so via an unsecured Wi-Fi connection.

As far as Cox is concerned, the practices that the RIAA is asking ISPs to adopt have been standard since the Digital Millennium Copyright Act was passed in 1998. The company acknowledges that it will, in the case of chronic offenders, shut off service. A Cox spokesman said this about the company's policy:

When we receive notifications from RIAA or other copyright holders stating that their copyrighted material is being infringed by a customer, we pass that information along to the customer so they can correct the problem, or dispute the notice directly with the copyright holder if they feel the notice was sent in error. This notification is the most helpful thing we can do for the customer and is expected of us, as an ISP, under the DMCA. We attach a copy of the notice from the copyright holder with our message to the customer.

The spokesman said that the company has issued "hundreds of thousands" of warnings to customers but has terminated service on less than one tenth of 1 percent.

There's data to support the claim that warning notices work. In the United Kingdom, research done by Wiggin and Entertainment Media Research found that seven out of 10 people surveyed said they would stop downloading unauthorized content if they received a notice from their ISP.

Note to readers: Have you received a warning letter from AT&T or another ISP? If so, e-mail me by clicking on the link in my bio below. Please include your contact information. I won't reveal your name in any story if that's what you prefer.

Research in the United Kingdom shows that 70 percent of those surveyed would stop pirating music if they received a notice from their ISP.

(Credit: Wiggin)

AT&T, one of the nation's largest Internet service providers, confirmed on Tuesday the company is working with the recording industry to combat illegal file sharing.

At a digital music conference in Nashville, Tenn., Jim Cicconi, a senior executive for AT&T, told the audience that the ISP has begun issuing warning notices to people accused of pirating music by the Recording Industry Association of America, according to one music industry insider who was present.

Early Wednesday morning, an AT&T spokeswoman confirmed that Cicconi made the statements.

In December, the RIAA, the lobbying group of the four largest recording companies, announced the group would no longer pursue an antipiracy strategy that focused on suing individuals, but rather would seek the help of broadband providers to stem the flow of pirated content. The RIAA said an undisclosed number of ISPs had agreed to cooperate but declined to name them. In January, CNET News reported that AT&T and Comcast were among the group.

Sources told CNET on Wednesday that a Comcast executive confirmed that the nation's second largest ISP is working with the RIAA. At the same Nashville conference where Cicconi spoke, the Comcast exec said the ISP has sent 2 million warning notices to customers accused of infringement by entertainment companies. The sources have also confirmed that Cox is a member. (You can read more about that here: "Comcast, Cox join RIAA antipiracy campaign.")

Representatives of the RIAA could not be reached for comment.

Cicconi told attendees of the Leadership Music Digital Summit that the notices, which are sent via e-mail, are part of a "trial." AT&T wants to test customer reaction, he said. It was unclear Tuesday evening if AT&T had included any threats to suspend or shut off service.

The RIAA had said that under its "graduated response" plan, repeat offenders faced the possibility of their ISP suspending or terminating service--at least temporarily. There are also other forms of escalating responses, such as the sending of multiple letters. Some of the notices could take a stronger tone or perhaps the ISP might follow-up with a phone call. Managers at the organization have also said they support due process to protect people from being falsely accused. What the due process includes has yet to be determined.

Reached Wednesday morning, Claudia Jones, an AT&T spokeswoman, said the company's letters do include a mention that company retains the right to terminate service. She wanted to make it clear that AT&T has no intention of doing so, however. Jones also said the ISP never shares customers' names or any other personal information. What the company does do is send a "cover letter" to the accused customer along with the letter the ISP received from the RIAA stating that the person's IP address was flagged.

AT&T goes on to tell the accused customer that the problem may be caused by a teenager in the house who may be illegally downloading or that the customer might have an insecure Internet connection and that someone could be using it to steal content.

The ISP also informs the customer that downloading unauthorized copies is illegal and should be prevented. As for chronic offenders, Jones was less specific but said: "We can't assume that people are stealing. All we know is that they are using a lot of bandwidth. We can't be the police or the copyright enforcer...that's up to the content owner."

All the activity going on with AT&T, Comcast, and Cox is likely the first stage in what promises to be a long and drawn out process of using ISPs to help protect copyright material.

ISPs have traditionally tried to stay out of the fray between the big entertainment companies and those who download music illegally. They remain squeamish about the possibility of alienating customers, according to music industry sources. The ISPs also don't like plans that call for them to cut off access and chase away a source of income.

Note to readers: Have you received a warning letter from AT&T or another ISP? If so, e-mail me by clicking on the link in my bio below. Please include your contact information. I won't reveal your name in any story if that's what you prefer.

Jerry Scroggin, the owner of a Louisiana Internet Service Provider, says he's skeptical of a service that proposes to pay ISPs to police their networks for pirated music and movies.

I wrote about Scroggin last month following the music industry's announcement that it would scale back a longtime strategy of suing individuals suspected of music piracy, and instead enlist the help of ISPs to thwart copyright violations.

Scroggin argued that the Recording Industry Association of America (RIAA) should help pay the costs incurred when they ask ISPs to chase down suspected music pirates. Days after the story was published, antipiracy firm Nexicon contacted Scroggin about a plan to share money collected from accused file sharers with ISPs.

ISP owner Jerry Scroggin is skeptical of company that plans to pay ISPs to police networks.

(Credit: Jerry Scroggin)

In theory at least, paying ISPs could sway the balance of power in copyright enforcement. Up to now, ISPs have shied away from helping content creators protect intellectual property. There hasn't been much to motivate them, said Scroggins.

Film studios and the major music labels frequently ask ISPs to crack down on copyright violators. They expect this done free of charge, Scroggin said. Under the RIAA's new plan, ISPs would also be asked to suspend the accounts of chronic offenders. That means an ISP might be forced to wave bye-bye to paying customers without receiving any compensation. If ISPs could somehow be compensated, it might encourage them to become copyright enforcers.

The RIAA has said it wants ISPs to do nothing more than honor their own user agreements, which have long prohibited illegal acts, such as unauthorized file sharing.

On Thursday, I talked to Kyle Reed, the Nexicon sales associate who contacted Scroggin. He confirmed for me that Nexicon claims it can help ISPs automate and reduce the costs of chasing down file sharers, cut down on false positives and will share revenue collected from suspected copyright violators with ISPs.

He said previous antipiracy services have alienated ISPs and Nexicon wishes to avoid that.

Nexicon offers a variety of antipiracy services. One offering tracks those people who infringe on intellectual property and sends take-down notices to their ISPs. Reed said the company has the ability to distribute 95 million of these notices per day. That could prove helpful, according to Reed because the company plans to announce more customers soon. As of right now, Reed said Nexicon has only disclosed the name of one customer of this service: the family of rocker Frank Zappa.

As part of Nexicon's "Get Amnesty" service, the company tries to obtain fees from those it claims are guilty of violating copyright law. Nexicon sends e-mails to those accused notifying them that they must "settle" with the copyright owners, which typically means paying a fee. "After opening the email, the infringer clicks a link to visit GetAmnesty.com, where they can settle their infringement to avoid legal action and receive a legal release from the copyright owner," according to a statement on the company's site.

Nexicon then offers to help ISPs manage the take-down notices they receive from, well, Nexicon and competitors. The company's Envoy system uses a combination of automated and human systems to flag copyright violations and send take-down notices--saving ISPs time and money, Reed said. He added that the system is less likely to accuse someone by mistake.

"The user is presented in real-time a complete inventory of infringements processed by Nexicon on behalf of its copyright owner clients," the company wrote on its site.

Scroggin said he hasn't heard Nexicon's entire pitch but wasn't impressed with the overall approach.

"I would still wind up losing customers," Scroggin said. "I would also have to pay Nexicon for this...I have to survive in this economy but I don't have the big marketing dollars that bigger ISPs have. I have to fund 401(K)s and find ways not to lay off people. Giving free rein to the RIAA is not part of my business model."

The Recording Industry Association of America has dumped the company charged with gathering evidence for use against people accused of illegally sharing copyrighted music, according to a report Sunday in The Wall Street Journal.

As part of its controversial antipiracy strategy, the RIAA had enlisted MediaSentry to search the Internet for evidence of people sharing large amounts of music. The trade group's campaign on behalf of the world's largest recording labels reportedly resulted in lawsuits against about 35,000 people.

However, MediaSentry was often criticized for its gathering techniques, often characterized as invasive and excessive.

Earlier this year, The Chronicle of Higher Education visited the RIAA offices and got a demonstration of how MediaSentry hunted down file sharers. MediaSentry wrote scripts to automatically hunt for the names of copyright songs and locate the IP addresses of computers sharing files.

MediaSentry checked the hashes (identifying marks) on the song files to make sure they matched the copyright song. If the marks didn't match, the company used software from Audible Magic to compare sound waves.

MediaSentry would then forward the information to the RIAA.

However, MediaSentry only checked to see which songs were being offered; it had no way to check who was downloading them. So, instead the RIAA argued that making a file available is copyright infringement. But that strategy was dealt a blow in April when a federal judge rejected the RIAA's "making available" argument in a lawsuit against a husband and wife accused of copyright infringement.

Last month, the RIAA announced that it no longer plans to file lawsuits against people it suspects of pirating digital music files. Instead, the RIAA has reached agreements with unidentified Internet service providers to "reduce the service," to chronic file-sharers. Exactly what a reduction of service may include isn't specified, but a source close to the situation said that none of the ISPs have agreed to limit a user's bandwidth, a practice known as throttling.

The RIAA said it would replace MusicSentry with DtecNet Software ApS--a Copenhagen-based company the trade group has worked with before, according to the newspaper.

A federal judge has denied the Recording Industry Association of America's request for an appeal of an earlier decision to grant a retrial in its copyright infringement case against Jammie Thomas.

Earlier this year a jury found that the Minnesota woman had violated copyright laws by illegally sharing more than 1,700 songs. The jury ordered the woman, Jammie Thomas, 30, to pay $220,000 to six of the top music labels.

But a few weeks after the verdict was handed down, U.S. District Judge Michael Davis threw out the verdict on the grounds that he originally misguided the jury by indicating that simply the act of making a copyrighted song available for sharing amounts to infringement. A new trial has been rescheduled for March.

In an attempt to avoid another trial, the RIAA appealed the judge's decision to declare a mistrial. But now it looks like the RIAA's latest attempt to gain a conviction for copyright infringement has been thwarted.

This case has been closely watched because Thomas is the only individual charged with copyright infringement by the RIAA who has taken her case to trial. Since 2003, many of the 26,000 persons sued by the industry association have simply settled the cases out of court by agreeing to pay a few thousand dollars. But Thomas, who has been accused of sharing music via a peer-to-peer service, Kazaa, has always maintained her innocence.

On the surface, the importance of the outcome of the Thomas case is somewhat diminished since the RIAA announced a couple of weeks ago that it is taking a different strategy to combating the sharing of illegal copyrighted music.

Instead of suing individual users, the industry association plans to work with Internet service providers. Under this new arrangement, users that the RIAA suspects of illegally sharing music will be asked to stop their activity. If the activity persists after three warnings, ISPs will then cut off broadband service.

So far, the RIAA hasn't disclosed details about how the new process will work, which has made some consumer advocates wary.

Even though the RIAA has revised its strategy toward copyright infringers, the legal questions raised in the Thomas case are very important and remain relevant to how the RIAA plans to battle copyright infringement in the future.

The main legal question yet to be answered is how to determine whether copyright laws have been violated in the digital age.

Judge Davis threw out the verdict in the case because he argued that "actual" distribution of copyrighted music must be proven for the law to be violated. Therefore, the RIAA had to prove that users downloaded the music that Thomas was making available through the peer-to-peer service. Simply making the content available is not a violation of copyright, under this reasoning.

But the RIAA has said that proving that songs have been downloaded from services like Kazaa is nearly impossible. As a result, the RIAA has long argued that making digital music available for others to download illegally is an infringement on copyright.

Over the years, judges have disagreed on this reasoning, and as a result, they have written different opinions on this issue. As a result, it's very likely that the legal issue of what constitutes copyright infringement will eventually be decided by the Supreme Court. Regardless of how the case is decided in March, it's likely that the losing side will appeal. And after the case makes its way through the federal appellate courts, it will likely end up in the highest court of the land.

The budget for the music industry's trade group, the Recording Industry Association of America, will soon shrink as the major labels reduce costs and their dependence on file-sharing lawsuits, industry insiders said Friday.

Friday's startling news that the trade group representing the four largest music labels has declared an end to a long-running legal campaign against file sharing will mean a reduced role for the RIAA, which is coming up on its yearly budget review, according to a source close to the group.

But in a climate where digital music sales are growing, though not fast enough to make up for the losses from shrinking CD sales, the trade organization was already headed toward likely cutbacks. One source said that one of the top four labels has already begun making noise about lowering its contribution to the organization.

An RIAA representative declined to comment.

The RIAA has seen budget cuts for the past several years, and both sources said the organization isn't going anywhere. The group still lobbies Congress on behalf of the music industry and artist rights.

Now, with a less litigious agenda, perhaps the RIAA will need one or two fewer lawyers.

See also:
• RIAA drops lawsuits; ISPs to battle file sharing
• Copy of RIAA's new enforcement notice to ISPs
• Lawsuits or not, the RIAA still doesn't understand us
• RIAA president: 'No talk of blacklisting'