After an appeals court ruled that Internet service providers (ISPs) do not have to hand over names of suspected music pirates to the Recording Industry Association of America (RIAA), ISPs are showing no interest in the RIAA’s latest effort to enlist them in its fight against music piracy.
The RIAA now wants ISPs to notify its customers that are suspected of illegal downloading but not yet targeted for a lawsuit by the music
industry.
“We would like to work with you to supplement our efforts by arranging for ISPs to notify their subscribers who are
engaged in infringing activity that this conduct is illegal,” the RIAA wrote to most of the nation’s 50 largest ISPs in a
Dec. 16 letter. “We are asking you to do this without providing us any identifying information about the subscriber.”
Under the proposal, the RIAA would supply an identifying IP address of a suspected infringer to its ISP, which would then send a notice of infringement to the subscriber.
According to industry officials contacted by internetnews.com, not one ISP has agreed to cooperate with the music
industry, which was dealt a major legal setback on Dec. 19 when an appeals court ruled the RIAA could not force ISPs to turn
over the identities of alleged music pirates. The RIAA claimed it had subpoena power under the Digital Millennium Copyright
Act (DMCA).
The decision reversed a January 2003 lower court decision upholding the DMCA subpoena power. Armed with that decision, the
RIAA issued more than 3,000 subpoena requests to ISPs and filed nearly 400 copyright infringement actions in a highly
publicized and controversial attack against individual downloaders. No subpoenas have been issued since the Dec. 19 decision.
The Dec. 16 letter, signed by RIAA CEO and Chairman Mitch Bainwol and president Cary Sherman, shows that the group wants to go a
step further in order to stop illegal downloads of copyrighted material.
“Specifically, when we determine the IP address of an infringer, we would like to send you the IP address along with a Notice
of Infringement that you would forward directly to the subscriber matching that address,” the RIAA wrote. “You would not
identify the subscriber to us. However, we believe if you forward the Notice to them it will dramatically increase awareness
and effectively discourage continued infringement.”
A music industry official, who asked not to be identified, said the proposed ISP infringement notice is intended to send an
early warning to downloaders. Since a large of percentage of music downloading is done by teenagers, the RIAA hoped the
notifications, which were to be sent to the account holders, might tip off parents as to their children’s possible copyright
infringements.
“Our hope is that the voluntary Notice program we are proposing will allow us to work cooperatively to educate the public and
to reduce online copyright infringement,” the letter states. “Not only will your participation help ensure that a vibrant and
legitimate market for online music can succeed, but forwarding a Notice to your subscribers may also save them from becoming
defendants in future copyright infringement lawsuits.”
The RIAA declined to elaborate on the letter. “We feel the language of the letter speaks for itself,” RIAA spokeswoman Amanda
Collins said.
ISPs are cautious in their public responses, although all agreed they are under no legal obligation to comply with the RIAA
request. The RIAA aknowledged that there is no law requiring the ISPs to send the notification letters.
“We are more than happy to talk with them (RIAA), but it has to as a part of a broader issue,” said Verizon
vice president and general counsel Sarah Deutsch.
She noted that the RIAA has not said whether it will appeal the Dec. 19 decision to the Supreme Court and that the music
trade group is still litigating the authority of the DMCA subpoena in other jurisdictions.
Earthlink spokesperson David Blumenthal said his company would “evaluate the request, talk with the RIAA
and decide what we think is best.”
Nicholas Graham, a spokesman for AOL, said the company does not discuss “day-to-day letters from the RIAA.”
MSN, the online network operated by Microsoft, did not respond to calls from internetnews.com.
