The Recording Industry Association of America has been waging war against copyright infringement — in the form of illegal downloads — since the file-sharing app known as Napster first appeared on the scene a decade ago. For much of that time, the RIAA’s preferred form of attack has been the lawsuit, with the record-industry body filing claims against hundreds of thousands of individuals for financial damages, including several high-profile cases that have targeted single mothers, war veterans, and teenagers for sharing as few as a dozen songs. Now, the RIAA has apparently decided to switch tactics, according to a recent report in the Wall Street Journal, and will no longer sue individual downloaders.
Instead, the agency plans to strike deals with Internet service providers that will see the ISPs agree to contact individual file-sharers when notified by the RIAA that illegal activity is occurring. After two warnings about their behaviour, the RIAA is hoping that ISPs will agree to shut off their customers’ access to the Internet.
What this means is that the record-industry group is trading a head-on assault for a back-room negotiation with Internet providers, in the hope that it can do an end-run around the problems its previous strategy produced. Not only was the lawsuit approach a magnet for negative publicity, but it also ran into repeated legal roadblocks as well. In one of the latest, for example, a U.S. court ruled that the RIAA would have to show that songs had actually been downloaded before it could prove infringement. Unfortunately for the RIAA, however, its new strategy could cause some legal headaches as well, since the “three strikes” approach is almost certain to be challenged in court.
One of the biggest issues with such an approach is that it assumes the RIAA has correctly identified a) specific songs that are being infringed, and b) the individual doing the infringing. If it makes a mistake in any one of the three steps, an innocent user has their Internet access cut off without any recourse. And over the years that the record industry has been pursuing its legal strategy, there has been plenty of evidence to show that its ability to do either a) or b) is far from perfect. The agency has repeatedly mis-identified not only the individuals doing the sharing — who in many cases are distinct from the customers the Internet account belongs to — but has also mis-identified songs as infringing when they have been legally acquired.
The “three strikes” approach is not a new one. The French government has proposed new legislation that would require ISPs to cut off the access of users who repeatedly infringe on copyright, although the legislation has yet to become law. An amendment by the European Parliament earlier this year strongly urged France and other European Union countries not to adopt this kind of legislation, but it was later overturned by the EU Council of Ministers, and according to the most recent reports France is going ahead with it. Britain’s record-industry lobby group managed to convince several ISPs to warn their users when notified by the agency, but they have stopped short of actually cutting off their users’ Internet access after a third “strike.”
The RIAA may think that it has come up with a clever way around its earlier legal hassles, but it could find that trying to make ISPs into copyright police faces just as many hurdles, if not more.