The RIAA’s About-Face on Lawsuits

The revelation that the Recording Industry Association of America (RIAA) plans to abandon its longstanding practice of suing individuals for illegally sharing music on the Internet has drawn cautious praise from some of the group’s most vocal critics. But many questions remain unresolved.

The details of the plan, first reported by the Wall Street Journal, involve the RIAA partnering with ISPs to combat music piracy.

Under the so-called “graduated response programs,” when the RIAA observes illegal file swapping, it would send a warning e-mail to the ISP, which would then forward it along to the individual who was uploading the songs. If the user didn’t stop, another notice would come, then possibly a third, accompanied by the threat of slowing or shutting off Internet service if the piracy continues.

In a significant departure from the previous litigation campaign, the RIAA would no longer litigate to seek to obtain a user’s identity from the ISP.

The ISP arrangements would mark a fundamental shift in strategy for the RIAA, which for more than five years has doggedly targeted the illegal online music trade with some 35,000 lawsuits filed against individuals, often seeking damages that critics said were outrageous.

The new partnership also comes at a time when ISPs are looking to expand their own content offerings, often in partnership with entertainment companies.

“It’s clear that we’ve reached a point where the business interests of ISPs and content owners are now aligned and the heavy file-sharing of online content is a mutual problem for both industries,” RIAA General Counsel Steven Marks said in a statement e-mailed to

But the idea of the RIAA partnering with ISPs to restrict data transmissions — and the possibility that the partnership could cut off Internet service entirely — has some watchdog groups on edge.

In a recent blog post, Fred von Lohmann, an attorney for the digital-rights group the Electronic Frontier Foundation, wrote that “being added to a nation-wide ‘Internet blacklist’ … is a disproportionate punishment, even for those who are ‘caught’ file sharing.”

Von Lohmann argues that the RIAA’s broad-based litigation strategy has failed to compensate artists for their work, and that an automated dragnet system could have severe unintended consequences.

“By conservative estimates, one in five American Internet users is an active file-sharer. Does the recording industry really think that banning 20 percent of Americans from the Internet is the right answer? Do ISPs? Or will the millions of ISP ‘warnings’ just give rise to more encrypted and anonymized file-sharing mechanisms, all the while getting no artists paid?”

The RIAA is not naming the providers it is working with, describing the arrangement as “a confidential agreement on principles … with several leading U.S. ISPs.”

“It’s clear that we’ve reached a point where the business interests of ISPs and content owners are now aligned and the heavy file-sharing of online content is a mutual problem for both industries,” Marks said.

The RIAA dropped its litigation program at the request of New York Attorney General Andrew Cuomo, who helped broker the partnership with the ISPs.

Gigi Sohn, president of the digital-rights group Public Knowledge, praised the RIAA for dropping its “counter-productive strategy of suing its customers,” but warned against casting the ISPs in the role of “copyright cop,” and called on the parties to come forward with a fuller description of how the program will work.

“We want to make clear that any arrangements between the RIAA and ISPs should not involve the invasion of customer privacy through the filtering of Internet content,” Sohn said in a statement.

“The public deserves to know more about these processes before they are put into place.”

The RIAA plans to continue pursuing the litigation is has already filed against suspected infringers.

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