At this point, there are still many more questions than answers regarding how those Internet service providers that have agreed to help the music industry thwart illegal file sharing will actually weed out accused pirates.
In an interview Friday morning, Cary Sherman, president of the Recording Industry Association of America (RIAA), said many of the details have yet to be hammered out. The music industry, he said, which also announced that it would no longer pursue a "broad-based legal strategy against individuals for file sharing," has drawn up a new antipiracy plan whereby ISPs would send notifications to those customers the RIAA accuses of copyright violations.
The group has long sent take-down notices to people via ISPs or campus networks. What is different now: for the first time, a number of unidentified ISPs have agreed to pull the plug on someone's service if accused by the music industry of pirating songs.
How long a network will deny Internet access to the accused has not been worked out yet, said Sherman, adding that the RIAA is negotiating these deals with ISPs on a case-by-case basis. That means, for example, practices will differ from one ISP to the next. One might send three e-mail warnings while a competitor may send two. Someone may suspend a customer for six months while another for a year.
"The details on the sanctions have to be worked out," Sherman said. "There's no one-size-fits-all approach."
The relevancy of the partnership between the music industry and ISPs can't be overstated. ISPs have been creeping toward law enforcement for a while now. Whether networks are helping the government monitor suspected terrorists or stemming the flow of child pornography, there's no mistaking that ISPs have jumped into the fray.
This has rung alarm bells at the Electronic Frontier Foundation, a vocal proponent for the rights of technology companies and Internet users.
"This is a huge civil liberties issue," said Gwen Hinze, EFF's International policy director. "When you cut off Internet access, we're talking about cutting off a person's total ability to communicate."
The big questions EFF wants answered is what kind of due process is there to protect those wrongly accused of copyright infringement from being kicked off the Web. Hinze noted that in France there has been an attempt by copyright owners to pass a "three-strikes" legislation. Under the plan, once a person has been accused of file sharing three times, an ISP has no choice but to cut off Internet service for a year. Those booted from one service would have a tough time finding another provider because the plan also calls for mandatory blacklisting of accused offenders.
Sherman said that these issues are being addressed.
"A specific plan (on due process) has to yet be worked out," Sherman said. "But this has not escaped people's attention. Everybody is concerned with this. The ISPs, as well as (New York State Attorney General Andrew Cuomo) want to be sure that there is a valid process that's accurate and fair. How it will work is not clear, but those wrongly identified will have a place to go and make their complaint."
What about blacklisting?
"We haven't even talked about the idea of blacklisting," Sherman continued. "It raises all kinds of issues. We would have to create a database of bad people. That's not what this is about. The idea is to create deterrents. This deters people from engaging in illegal behavior.
"We've been encouraged by not only what some of the studies have shown, but even from the e-mails we've received from users (who were notified under the old system) have said 'You got me, I won't do it again,'" he said. "We've received some e-mails from people: 'Hey, I didn't know my kid was doing this I'll talk to him and he won't do it again.' There is a deterrent effect and we're hoping to see more of that."
It's not yet clear which ISPs have been negotiating with the RIAA, but policing the network and sending notices to subscribers regarding misuse has never been top on the agenda of most. There have been instances, however, where certain ISPs have voluntarily helped content providers keep copyrighted content from being illegally distributed on their networks.
For example, in 2005, Verizon Communications struck a long-term content deal with Disney that included provisions for Verizon to send notices to broadband subscribers who were violating copyright laws. Under the deal, Disney gave Verizon the rights to transmit 12 of Disney's TV channels over its broadband network. In exchange for the right to provide that content, Verizon has agreed to forward and track notices to its subscribers who are allegedly engaged in the unauthorized distribution of Disney's copyrighted works, without identifying the subscribers to Disney.
Not much is known about this stealth agreement, because Verizon has refused to provide details, stating that the agreement is confidential. But there is supposedly a provision in the deal that allows for service to be terminated if Verizon customers receive multiple notices.
The problem with these types of agreements centers on enforcement. If notices are sent automatically, there's no way to tell if a user has received it. What's more, broadband service has become an essential part of many people's lives. Millions of people across the country rely on their broadband connection to provide them phone service. If their Internet connections are simply cut off, their phones also won't work, which could have devastating consequences in an emergency.
And if ISPs are involved in notifying and subsequently terminating service to potential music pirates, where will the policing stop? Some entertainment and content providers have suggested that network operators should filter traffic to ensure that unauthorized copyrighted material isn't traveling over their network. AT&T, the largest phone company in the U.S., has publicly stated that it's been testing technology that does just that. The company hasn't announced plans to use the filter technology. But it has been working with members of the Motion Picture Association of America and the RIAA over the past year to figure out ways in which it can curb the flow of illegal content on its network.
So far, AT&T appears to be on its own when it comes to wanting to become a sort of Big Brother of the Internet. While neither Verizon nor any of the big cable operators have commented publicly on plans to filter traffic for illegal content, these companies have historically opposed such action, and it's been with good reason.
Using filtering technology in this way could put AT&T and other ISPs in a precarious legal situation by not only admitting that they can filter traffic, but also indicating that they have a responsibility to do so. This is why AT&T and Verizon lobbied Congress more than a decade ago to include a safe harbor in the 1998 Digital Millennium Copyright Act that protects them from liability when their customers use their networks or search engines to illegally distribute copyrighted material.
Network operators won their fight by arguing that illegal content merely passes through their networks, and it is unreasonable to ask network operators to take on the task of filtering packets to see if they have violated copyright laws.
"AT&T is really out there on their own with this issue," said Gigi Sohn, president of Public Knowledge. "Filtering not only opens them up to legal issues in terms of determining what is legally distributed copyrighted material and what's not, but it will also cost a lot of money to implement and will slow down their networks."
Sohn added that she believes AT&T has been pushing the content-filtering notion because it is trying to strike deals with entertainment and content companies for its U-Verse TV service.
"It looks to me like AT&T made a deal with the devil," she said. "It's been a tactical move to get in their good graces, but I think in the long term, it's a mistake."
Staff writer Marguerite Reardon contributed to this report.