RIAA abandoning individual lawsuits

Robert Hallock (Thrax)

December 22, 2008 2:00 PM ET in News, , , , ,

pirate.jpgThe Wall Street Journal has revealed that the RIAA has chosen to abandon individual lawsuits. In exchange for this shift in policy, the RIAA is now pursuing concessions from ISPs to institute “three strikes” policies.

Under the terms of the agreements — which vary slightly from ISP to ISP — users may receive emails of warning based on tips from RIAA enforcers. Users who run afoul of these letters on more than three occasions may have internet access limited or severed entirely.

As Techdirt points out, this tactic has gone over unfavorably in the United Kingdom. ” If you think this sounds suspiciously like what Europe just rejected, you’re right,” writes Mike Masnick.”Also, as the EU noted in rejecting this proposal, the “punishment” hardly fits the crime. These days, an internet connection is a necessity — and taking it away from people because someone is sharing the gift of music with others not for any sort of commercial gain is totally unbalanced.”

Meanwhile, the Electronic Frontier Foundation takes the RIAA to task in their latest PR/editorial. They claim the new system will just lead to increased bureaucracy as a raft of errors pile up in the automation.

The problem is the lack of due process for those accused. In a world where hundreds of thousands (or millions) of copyright infringement allegations are automatically generated and delivered to ISPs, mistakes are going to be made (just look at the innocents, 1, 2, 3, 4, who were swept into the RIAA litigation machine). Anyone who has ever had to fight to correct an error on their credit reports will be able to imagine the trouble we’re in for.

By any stretch of the imagination, the RIAA will continue practices that — at best — stem from an executive team woefully unprepared to grapple with the digital age.

10 Comments:

  1. _k_
    22 Dec '08, 9:41 pm

    Isn't this kind of against the 5th and 14th Amendment to that thing, the Constitution. Lack of due process there is none.

  2. Thrax
    22 Dec '08, 9:44 pm

    Yes, which is why it's illegal in the EU (excepting France).

  3. Leonardo
    22 Dec '08, 10:07 pm
    Isn't this kind of against the 5th and 14th Amendment to that thing, the Constitution.

    It depends on how such a system would be implemented. If you are filtering for content and patterns and not for originators, then there could be a legal case made for it. If I'm watching cars pass on a road I invade no one's privacy. If I open someone's vehicle and peek into the trunk without strong probable cause or a warrant, then I am invading privacy.

    I think the legal issue would boil down to whether an ISP could determine illegal transfer of intellectual property without actually monitoring individual persons.

    Let me try another analogy: There is a currency counterfeiting operation going on in a town. Investigators look at money coming into banks, stores, and armored car operations. They suspect an individual living on Main Street due to his criminal record. They enter his home and search, based soley on his criminal record. That is most likely a 4th Amendment violation. OK, different tactic - investigators through analysis of evidence can point to a pattern of counterfeit money appearing every time and at every location the suspect shops. Their probable cause is enough for a judge to sign a search warrant. The investigators then enter and search the suspect's home legally.

  4. Khaos
    22 Dec '08, 10:38 pm

    Leo; I respectfully disagree with you on this matter and in particular your first analogy, which I feel most accurately reflects the process of observation, but poorly represents the circumstances.

    Let me just put it this way: What they are suggesting is more akin to monitoring what someone watches on television and cutting off their DirecTV service because they order pr0n on PPV rather than observing cars driving down a street.

    The Internet is both a public and a private place, and it is the epitome of both at each extreme. We need legislation to accurately and fairly draw a line between what is in the public domain and what is in the private domain.

    Because no such laws exist at this point in time, it is difficult to say where these activities fall under the 1st, 5th and 14th Amendments.

    In my personal opinion, if someone initiates a transfer from a source to their personal computer, that is an action in the private domain. Ostensibly, the data being transferred is for private consumption and could be anything; legal documents, personal documents, private family matters. In the case at hand, it happens to be music.

    To sacrifice the right to personal privacy in all these other cases in order to counteract the one case of copyright infringement is just flat out wrong. Where do we draw the line? I believe that it must be drawn FIRMLY on the side of personal privacy.

    The fact that it is possible for things to occur in the private domain which violate laws is nothing new. It has happened and will continue to happen for as long as we've had a sense of the personal, God given right to privacy from the government, from institutions, and from corporations / bureaucracies like the RIAA.

    This fact alone does not make it acceptable to take away these God given rights from man. Just because some broke-ass college kids download music on teh Intarwebz does not give my ISP or the RIAA the right to go sniffing around my private domain.

    If they were in my backyard, I'd shoot them.

  5. Leonardo
    22 Dec '08, 11:40 pm
    Where do we draw the line? I believe that it must be drawn FIRMLY on the side of personal privacy.

    It remains to be seen how networks would be monitored. If it did appear there were a line to be drawn, then I would side with you on where it should be drawn.

    The fact that it is possible for things to occur in the private domain which violate laws is nothing new. It has happened and will continue to happen for as long as we've had

    Yes, I agree with what you said and what you implied. Look, I know I'm looking at this naively, as I really don't understand networks all that well - what is traffic in general, what is or what should be considered private communications, what is transparent and publicly available.

    Consider a public roadway. We can readily see, without having to take invasive measures, who is driving erratically, illegally, and whose motor vehicle is belching out excessive pollution. Yeah, I know, the electronic networks are not so transparent.

    Assume for the sake of discussion that ISPs agree to work with RIAA or whatever industry or government group to perform network monitoring. If an individual user, business, or entity is never identified without lawful order, what would be rights-infringing about screening for child porn or stolen intellectual property? (our own personal views on the recording industry's business model are irrelevant in this scenario) What would be illegal about examining a patently false $50 bill that crosses a counter, only to investigate further with lawful predication? Am I still being naive?

  6. Thrax
    22 Dec '08, 11:48 pm

    The problem is that the ISPs are tacitly agreeing to give personal data to the RIAA so the RIAA can forward a cease and desist to the user through the ISP. This represents a dissemination of private information w/o a subpoena which, according to legal precedent, is bad juju.

    If an ISP disconnects a user based on the whim of a private corporation, this is penalty without due process.

  7. Leonardo
    23 Dec '08, 12:02 am
    ISPs are tacitly agreeing to give personal data to the RIAA so the RIAA can forward a cease and desist to the user through the ISP

    That is the crux of matter. And it stinks.

    This represents a dissemination of private information w/o a subpoena which, according to legal precedent...

    Oh, that goes beyond "precedent". That's fairly well against established privacy laws at all levels as I see it.

    Alright, let's continue the anologies. This would be like an industry trying to force Uhaul to check on the private contents and the owners of same being transported in the trucks they rent out. Now, if someone renting a Uhaul truck on the premises of a Uhaul business is openly openly loading illegal explosives or bound, kidnapped persons, then Uhaul would be obligated to report it, otherwise they might be considered legally complicit. To continue that, if Uhaul were to discover blood in the bed of one of their vehicles, it would be perfectly fine for them to report that to law enforcement authorities...but not to a private third party.

    And I think that is what this will all condense down to: what exactly is private communications and what is public communications, open to scrutiny. I hope MPAA/RIAA get their butts handed to them.

  8. Khaos
    23 Dec '08, 12:50 am

    Leo - There is, I believe, a strong distinction between actively monitoring people's private usage and simply observing some sort of wrongdoing.

    To build on your example, U-Haul could rightly, and should, report some suspicious behavior or activity that they observe in the public domain. This would include blood in the truck, or someone loading illicit items into the truck at the U-Haul center.

    What should not happen under any circumstances is U-Haul installing doors in their trucks which only they can open and then sending a contracted agency to inspect the contents of your rental truck whenever it has been parked for more than fifteen minutes.

    I know the example sounds absurd because it is physically impossible, but the parallel is nearly perfect. One of the most difficult aspects of Internet security and privacy is the rate of dissemination. Data, and consequently information -- including private information -- travels across vast physical distances nearly instantaneously, often without the owner of said data or information even being aware of it.

    The potential for abuse is extraordinarily high. Given this potential for abuse, we must ask ourselves what we value more: Our personal privacy, or the copyrights of artists? Or the actions of a pervert who views child pornography, for that matter?

    Privacy is paramount. Without it, we have no tangible self.

    Of course there are sacrifices made somewhere. In this case, I feel it is not only reasonable, but necessary, to sacrifice justice for Internet pirates, child pornographers and other Internet offenders in order to preserve the very identity of humans.

    Not to evoke paranoia, but the age of Big Brother is truly upon us. Location-aware GPS devices that are connected 24/7 to the Internet are viewed as a convenience by many, but if we do not safeguard our privacy, they could very well end up being the end of our civilization as we know it. I am not suggesting that everyone go stockpile canned food and move to the mountains, but we would be well-served to observe the lessons of our forefathers who penned the Constitution knowing full well the evils that institutions can purport on individuals when privacy and liberty are not respected.

  9. Khaos
    23 Dec '08, 12:56 am

    Hey, one thing worth noting is that people distributing illegal content are operating in the public domain.

    In other words, if somebody advertises -- to use the term generally -- that they have illegal content and then provides it to others, that is absolutely an observable offense.

    This fits your analogies far better than the monitoring and prosecution of consumers of illegal content.

    Frankly, there is no way to police consumption on the Internet without jeopardizing the privacy of individuals. There exists, however, a legal precedent and offline parallel for prosecuting suppliers on the Internet.

    Furthermore, should we really be that worried about consumption of information? After all, the Internet is only an information super-highway of sorts. Sure, information has grown in scope from text to images to video to entire applications, but it is still information. There is an argument to be made that any policing of information is outside the domain of governmental responsibilities -- but perhaps this is now the libertarian in me speaking.

  10. Leonardo
    23 Dec '08, 1:05 am

    Thanks for working within the analogy framework. It makes it much easier to understand for network impaired. My only claim to fame in that arena is mixed wireless/Ethernet LAN at home.

    distinction between actively monitoring people's private usage

    Nope, that should not be done unless there is already legal probable cause of harmful, criminal activity.

Troll-free since 2003 ®