RIAA's New Policy Isn't About Deterrence, It's About Sidestepping Due Process

from the it's-for-your-own-good dept

On Friday, the RIAA announced its plan to end their campaign of suing thousands of alleged downloaders; instead, it has negotiated with ISPs to disconnect subscribers who the RIAA identify as repeat infringers. From what little is known about the system, ISPs would pass along warning emails to the customers the RIAA claims are downloading copyrighted material. Following 2-3 warnings, subscribers would have their connection terminated.

Speaking to CNET on Friday, RIAA President Cary Sherman said that the tactical change was an attempt to deter would-be infringers. “The idea is to create deterrents. This deters people from engaging in illegal behavior.” This is either misleading or mistaken, if the claim is that warning emails and the threat of having to switch ISPs is more of a deterrent than an incredibly expensive lawsuit. Unless the RIAA can convince ISPs to flood their subscribers with warning emails early and often, more people are likely to hear about the end of lawsuits and stop fearing potentially costly litigation or settlement.

The more likely reason for the change in approach is that the RIAA recognizes that the lawsuit approach has been an abject failure. Not only does it alienate fans, it is costly and rests on shoddy legal theories. As courts have begun to realize that IP addresses aren’t solid evidence and that “making available” doesn’t constitute infringement, the RIAA has been forced to realize that their goals don’t align with thoughtful justice. So, what’s a dying industry to do? Obviously, cut out those pesky judges and their principles of due process. Although Cary Sherman insists the wrongly accused will “have a place to go and make their complaint,” the lack of specificity is as worrying as the RIAA’s previous mistakes concerning their lawsuits.

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Comments on “RIAA's New Policy Isn't About Deterrence, It's About Sidestepping Due Process”

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Alan says:

The corollary to this is...

(Disclaimer – IANAL) So, if a user is served with one of these ‘warnings’ then they request the ISP produce evidence of file sharing or they take out a defamation (slander? not sure which) suit against both the ISP and the RIAA. Won’t the Ass. still be in the same position, having to justify their dubious ‘evidence’ again in a court of law? Similarly, will the ISP be in an even worse position for breaching a contract with the customer if there is no ‘real’ evidence of a breach of the TOS?

Craig says:

Re: The corollary to this is...

Yeah but they don’t have to pony up money for lawyers straight away like lawsuits…

Besides, a disconnection puts the onus on the end user, so the RIAA can fire off a disconnection request and not have to follow up unless someone gets the stones to contest it.

And how many people would contest this? 20%?
People *have* to contest/acknowledge it when it gets to a court.

Anonymous Coward says:

“…it…rests on shoddy legal theories.”

It is reassuring to know that one can come here and ascertain what is and what is not a shoddy legal theory. Since “making available”, for example” is declared here to be one such shoddy theory, I am more than pleased to no longer be burdened by having to read peer-reviewed journal articles and judicial decisions that take an opposite stance, even when the journal articles and judicial decisions have been prepared by respected academics/practitioners and jurists.

“…cut out those pesky judges.”

I assume this comment is directed to calling for the recusal of those members of the judiciary who do not view “making available” as a shoddy theory.

On a side note, “due process” is a constitutional doctrine that places limits on state action (both federal and state). It is not a legal doctrine that governs private action. Nonetheless, you will get little contrary argument that fairness in identifying alleged wrongdoers and providing them the opportunity to traverse any such allegations should be incorporated into any private contract between rights holders and ISPs.

Steve R. (profile) says:

Re: Due Process

While one can say that “””due process” is a constitutional doctrine that places limits on state action (both federal and state). It is not a legal doctrine that governs private action.” We, nevertheless, need to have informal rules of conduct for how we act in society. In the logical extreme, the assertion that “due process” is irrelevant for private transactions leaves everyone open to arbitrary and capricious actions. If the RIAA can cut-off your access to the internet in some whimsical manner, they why can’t you have your ISP deny service to the RIAA? Actually, since the RIAA probably has deeper pockets than any of us, we will end-up with a society were those who have money essentially make the law and the average citizen ends up with no rights. Do we really want the likes of the RIAA to have unfettered power?

nasch says:

Re: Re:

I assume this comment is directed to calling for the recusal of those members of the judiciary who do not view “making available” as a shoddy theory.

No, it’s directed to the practice of getting ISPs to send threatening letters and cut off access to their customers, rather than going through the courts. When there’s no judge involved, they only have to convince the ISP to play ball, which is probably a lot easier and definitely a lot cheaper.

Paul` says:

Why would ISP’s kill off their own user base at the request of some other organisation? I assume there would be a financial intensive for the ISP’s to actually do this.

Also, it’s obviously not a requirement that ISp’s do partake in the system so wouldn’t users just flock to the companies who tell the RIAA where to stick it?

Steve R. (profile) says:

Re: Financial Incentive

Hey its the old west. The RIAA could pay the ISP a “bounty” for every person the ISP nails. Actual guilt of course would be irrelevant.

The RIAA may not pursue this strategy since it would mean paying out real money. Nevertheless, it does point to a potential shortcoming of how the free-market operates. What happens if a third party pays someone to deprive you of access to the internet, to inspect your packets, to trespass on your computer, or otherwise interfere with your packets?

FredW (profile) says:


Put your money where your mouth is. The IPS’s think the only money they have to lose is of the person they cut off. Which is cheaper than the possibility of dealing with a legal “threat” from the RIAA.

Someone should publish a list of IPS’s that will drop their customers at the beckon call of the RIAA. Then good netizens could switch to to an ISP that does NOT participate in the program. When they cancel they need to let the ISP know exactly why they are canceling. Also let the new ISP you sign up with know exactly why you left your old ISP.

These netizens are the same people who influence their friends and relatives. If all the recommendations made are for ISPs that don’t cave, and at every turn you move those you know away from the bad ISPs. Let people know, they can be falsely accused. Their wireless can be hacked. They can get some spyware that would allow files to be shared or served from their computer. Three strikes and you are out, whether you did anything wrong or not. Encourage them to move to an ISP where they never have to worry about such a thing happening.

Vote with your wallet. It is your right to do so and it is the one thing that companies understand. People have principles…most companies do not.

joe says:

first of all my phone is on the voip cut my isp you cut off my phone bank account etc i will sue the isp and the riaa the riaa is heading for a lot of trouble and endangering peoples lives this will you will see is not legal the riaa and the isp are doing things without due
process lets do the math riaa sues 35,000 people it cost them more to sue thent they got back the riaa lost money
and the fact is there are 35 million file shares a day in 5 years 900 million files traded hands

Frank says:


Most ISPs provide both Internet and cable TV services and phone service. If I ever got a letter from my ISP that was generated by snooping by the RIAA, I would disconnect my modem, my digital cable box and my telephone equipment,drive to their office which is only three miles from my house, and tell them to shove their service where the sun don’t shine.

Think I’m kidding? The last time Comcast increased my monthly service, I did just that, I showed up at the office with four digital TV terminals and my modem which I packed in a box and told them to shove their service. It took them five minutes to offer me a deal that I couldn’t refuse. I took the deal and returned home, I will do the exact same thing the next time they increase my rate, so getting a threatening letter, to me would it would be no big deal, it only takes a few minutes to disconnect everything and bring it down to their office. There’s plenty of other fish out there, namely FIOS and DSL or even dial up if I’m really desperate. I don’t download music, so if I was accused wrongly, I would persue a lawyer and sue both companies without even breaking a sweat.

Crid says:

Why would ISP’s kill off their own user base at the request of some other organisation? I assume there would be a financial intensive for the ISP’s to actually do this.

My guess is that the RIAA would try to sue ISPs that told them where to stick it. Why try suing individual users (and probably get very little money at the end of it) when you can sue another company and potentially get much more money?

Also, it’s obviously not a requirement that ISp’s do partake in the system so wouldn’t users just flock to the companies who tell the RIAA where to stick it?

I would expect the first round of bullying to be against ISPs who won’t play ball. If that works, the second round of bullying will involve getting ISPs to do the data gathering for them.

bikey (profile) says:

three strikes

This plan is really making the rounds. After lobbying Sarkozy, who promptly and perhaps successfully tried to introduce it into French law, RIAA then convinced him, as president of the EU to initiate legislation introducing it into the EU as a harmonizing directive. Rejected by a full 88% of the European Parliament, he is still attempting to bring it in through the back door. Much has been written on this at the EU This is a case study in RIAA international lobbying for the circumvention of due process. It is closely tied with the collection of personal data, which obviously would make their task much easier.

Twinrova says:

Let RIAA go forward with this plan.

Again, another good idea which has consumer benefits down the road.

Does anyone here honestly think ISPs will “fight” for RIAA when their customer base starts to fall? Seriously, you’d have to be an idiot to think this.

ISPs aren’t dying businesses. Eventually, they’ll wake up and realize their mistake, often giving big incentives to consumers who walked away or were cut off.

Money talks. So let RIAA do this and maybe they’ll finally realize they’re dead and go quietly to their grave.

rwahrens (profile) says:

stand up ISPs

There was an interesting report of a small ISP in Louisiana that basically told the reporter (from CNN, I think) that he has gotten several requests from the RIAA for information on his customers regarding file sharing. He said that these requests cost him money, because he has to detail techs to locate that information.

When he gets those requests, he asks them, “What is your billing address?” He said he rarely gets a return call.

He knows he is protected by the law as an ISP, and they cannot sue HIM, so he’s just telling them to pay up for the service they are requesting from him.

He said he loses upwards of $1400 on a lost contract if he cuts a customer off, plus whatever bad vibes that customer sends out to friends and family. He is a small ISP, struggling to make it, so he is NOT liable to cut anybody off without solid proof, which he says the RIAA has not provided yet on anybody.

Good for him.

nasch says:

Re: stand up ISPs

I think it was on cnet. They posted one exchange where the rights holder replied, “And about the billing address, we fail to understand what you mean by that.” They can’t even understand that it costs time (and therefore money) to track down a user, or even worse maybe they know that and can’t understand why it should be their responsibility to pay for it.

gene (profile) says:

Court assisted robbery

The RIAA and Directv, each time they sue an innocent person had to lie to the court. Where the person was innocent, it can be nothing but a lie. While the Justice system knows they are lying in in many cases, The justice system does nothing to protect the public. Next time you are a juror or a witness, do what Justice has done and ignore Justice. Jury Nullification is a good start. Let’s see what Justice thinks when they are ignored just like innocent victims are.

hegemon13 says:


1. How does the RIAA have authority? How is this not interference with an existing contract between two third parties? I thought that was illegal.

2. Why in the HELL would an ISP agree to this? There would be no quicker way to corporate suicide. They have zero obligation to cooperate with this, and doing so pushes their customers to competitors. Even if there is no current competition, just wait. This will create a huge market of people wanting a reliable ISP that won’t sell them out. And where there is demand, someone will step in to fill it. If the major ISPs agree to this, they have pretty much signed their own death warrant.

cynic says:

@Steve R.

You say that if the RIAA gets their way on this, “… we will end-up with a society were those who have money essentially make the law and the average citizen ends up with no rights.”

Hmmm. Aren’t we living in that society already? I look around at the various regulations and laws that have been passed over the last decade or two, and all but a handful were bought and paid for by huge corporate interests, very often at the expense of the health or pocketbook of the average citizen. We are very far down the path to corporatism replacing democratic representation. Unless someone can find a way to eliminate the influence that organizations with a large amount of money have over lawmaking, I don’t see how that can be undone.

I think that is what Lessig is trying to do, but I don’t see how, short of a complete economic collapse, an armed revolution, or a coup by the army, it can ever happen. In theory, the people could elect representatives that put the average citizen’s interests above that of the corporations, but since the corporations’ money is pretty effective at buying elections, I think that will remain theory. I’d love to be proven wrong about that; I just don’t expect it.

To the others who are saying that the ISPs should stand up for their customers: The ISPs have competing incentives here. On the one hand, going along with the RIAA will drive away customers, both the ones they actually cut off and others who are influenced by the news and word of mouth. On the other hand, the ISPs have been complaining that the file sharers are overloading the ISPs’ networks and have recently started publicly changing their terms of service to put caps on usage and cutting off those who exceed the caps (after having done this quietly, without publicly acknowledging it, for quite a while). So the RIAA is offering the ISPs cover for what the ISPs want to do anyway — drop the users the ISPs perceive as bandwidth hogs. I don’t think you’ll see the ISPs fight the RIAA very much, though, again, I’d love to be proven wrong on that.

My fantasy is that some incident incites a substantial number of people to take up torches and pitchforks and dispatch a bad ISP and a few representatives of the RIAA, vigilante style. Pity it will never happen.

hegemon13 says:

Re: @Steve R.

“Unless someone can find a way to eliminate the influence that organizations with a large amount of money have over lawmaking, I don’t see how that can be undone.”

Actually, the solution is very easy, but it just won’t happen. The solution is major lobby and campaign finance reform. Specifically, a stipulation should be put in place that only a federal voting entity (iow, an individual citizen) can lobby or contribute finances to a campaign. That means no corporations, no special interest groups, etc. It means CEOs would have to reach into their own pockets instead of those of the corporation.

There really aren’t that many extremists out there. However, when those extremists control the money of huge corporations and lobby groups, we get the problems we have now. Make those individuals finance a cause themselves, and billions of dollars suddenly become a few million. Their voice and influence suddenly diminishes tremendously.

But, to pass such a law, those in congress would have to voluntarily stop taking the payola, and that will never happen without a full-fledged revolution and replacement of the government.

cynic says:

Re: Re: @Steve R.

Funny, your last paragraph is basically a restatement of the sentence of mine that you quoted, presumably to challenge it. So it isn’t very clear to me what all the stuff in the middle was there for. Did I misuderstand something of what you said?

I do have to respectfully disagree that prohibiting lobbying or political contributions by anyone but individuals would solve the problem. There is simply too much at stake for the corporations. Without measures that are extremely intrusive into private finances, I can’t see how it could be possible to enforce such a prohibition. The corporation would find numerous ways of funneling the money through individuals. Maybe I lack imagination in this regard. I’d be tickled pink if there were a way to pull it off.

John (profile) says:

A not too hypothetical...

Here’s a not too hypothetical example of what WILL go wrong if this idea passes:

A user shares music through his cable connection.
The RIAA and ISP find about it, so they block that IP address. Since there’s no more “due process”, why bother contacting the user? Having an IP address is good enough.
But since many ISP’s recycle IP addresses, let’s suppose a completely innocent person how has the “bad” IP address.
Now let’s suppose that the person also has a VOIP connection over their internet service.

By shutting off someone’s internet and VOIP service, you’re shutting off his phone service, including the ability to dial 911 in an emergency. So, does the RIAA and the ISP really want to take on the liability of wrongly cutting someone off and then having that person die from not being able to call 911?

It’s bad enough that the RIAA is forcing kids out of college to pay for their lawsuits, but maybe deaths (or close calls) of wrongly-accused people will finally be the wake-up call the public needs to put an end to this nonsense.

PaulT (profile) says:

Re: A not too hypothetical...

Erm, not only hypothetical but wrong I’m afraid…

First of all, the IP address would not be blocked. The customer’s account would be blocked (i.e. their login details would be prevented from obtaining an IP address). Secondly, I’m not entirely sure how it works in the US, but I’ve encountered exactly nobody who has a VoIP service and not either a mobile or landline. No landline? I can buy that, but no mobile either? That person’s asking for trouble (e.g. how would they make a call if their VoIP craps out due to standard problems), and most VoIP providers urge you not to depend on them for emergency calls.

What’s more likely to happen is that the IP information cuts off a home business or otherwise loses someone a lot of business or money. That person takes them to court, during which process the ISP has to reveal the evidence that they used to order the shutdown. If it’s no more evidence than they have at the moment (an IP address and an available file), a lawsuit for lost earnings would probably win with a healthy amount of punitive damages, setting a nice legal precedent.

The big problems with this are twofold – it took a long, long time for defendants to reach court in the previous cases, it may be longer with these issues while people lose businesses, homes, etc.. Also, a lot of other people will be watching this closely and demand that the ISPs perform a similar service for anyone accessing other “illegal” information online. The potential damage to free speech and freedom of information cannot be underestimated if would-be censors get their way.

Mark Regan says:

How Do You Think The RIAA Obtains The Evidence They Need?

By invading the privacy of the users, that’s how. What gives them the right, if I make a living off the web, to grab MY customer list and threaten them with disconnection of their internet service simply because they did business with me?

Or, if I am a user and visit “certain” websites, what business is it of the RIAA to tell MY ISP that I am breaking the law or regulations, according to them, based on WHAT legally obtained evidence?

So just HOW is the RIAA obtaining all this “evidence” of theft of their intelloctual rights? By invading OUR privacy, that’s how.

Which is worse? I bet if the police invaded the privacy of your bedroom to obtain evidence of your cheating on your wife, you’d be upset. Why should you be any less upset when the RIAA invades the privacy of YOUR computer, or monitor YOUR connections to third party vendors or services, simply based upon their suspicion that you MIGHT be stealing THEIR property.

Using that logic, I can suspect my NEIGHBOR of stealing MY stuff out of another neighbor’s garage, and then based upon MY suspicion, break into both my neighbor’s garages and plant devices to spy on each neighbor, and then accuse them in front of a third party of conspiring to steal MY property.

All done without warrants or proof or anything but a hunch. And done over international borders with impunity. If my ISP is local, why should they give a crap if some French company claims I am “stealing” their property which is contained on a Chinese website when I didn’t (but maybe my son, using my computer without my knowledge did.)

Pretty murky legal standards if you ask me. If I were an ISP I’d tell them to take a flying leap. I am in the ISP business and I want LOTS of customers paying me each month, and I don’t want to harass them based upon allegations rising from a third party with an axe to grind who is NOT my customer or supplier, arising out of an incident that occurred in yet another country.

Muddier waters I have not yet seen.

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