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Anita Ramasastry

Verizon's Decision to Cancel Users' Internet Service for Illegal Downloading: A Better Option than RIAA Lawsuits?


Tuesday, February 9, 2010

Have you, or has someone in your household, been illegally sharing copyrighted music or movies online? If so, you might want to think especially carefully about the situation – for, now, that situation may result in your Internet Service Provider (ISP) terminating your Internet access.

In this column, I will explain the way in which at least one ISP, Verizon, has now gotten into the business of policing illegal file-sharing. In addition, I will argue that this approach is likely better than the previous approach of suing (or settling with) those suspected of illegal downloading – but only if fair procedures are followed.

The RIAA's New Approach – and Verizon's Participation In It

In the past, the Recording Industry Association of America (RIAA) would sue people who shared copyrighted material online in violation of federal laws. In late 2008, however, the RIAA announced that it would try an alternative approach: It would work with ISPs to police illegal downloading.

Until recently, it was unclear whether any of the major ISPS were cooperating with the RIAA in this respect. However, a recent news report indicates that Verizon may indeed be working in partnership with the RIAA -- as, in effect, a private enforcer of the copyright laws. This is especially significant because Verizon is one of the nation's biggest broadband providers.

Reportedly, Verizon begins its enforcement by warning the subscriber to end his or her involvement in illegal file-sharing. If that warning is ignored, Verizon then sends more strongly-worded warnings. If the stronger warnings also do not spark compliance, then Verizon will end the subscriber's service.

Verizon claims that the notices are working – and that is no surprise. Let's say that a teenager in the house is the one who is engaged in the copyright infringement. Mom or Dad receives the notice, and checks in with the rest of the family to find out what has happened. If the notice is accurate, then you can bet that Mom or Dad will figure out who the downloader is, and try to stop the activity.

Or maybe the notice might be received by a group of roommates in an apartment. If the notice is accurate, then the other roommates will surely figure out who is doing the illegal downloading, and prevail upon that person to stop before all the roommates lose their Internet service.

In others words, the notice will likely service as an informal enforcement mechanism, causing households to police themselves. And even individual illegal downloaders living alone will have to consider if a few more downloads are worth losing Internet service entirely.

Why This Situation Is Better than the RIAA's Litigating Against lllegal Downloaders

Suing illegal downloaders seemed to be a poor strategy for the RIAA, at least from a public relations standpoint, and perhaps from a financial standpoint as well. The RIAA's – and the recording industries' -- image in the public eye was tarnished when the RIAA sought large penalties, via settlements or occasionally in court, from defendants who were not wealthy individuals, and who had downloaded relatively modest numbers of songs. And although the penalties were large in the eyes of the individuals who suffered them, the cost of the RIAA's attorneys' time must have been quite large, as well.

Compared to that prior strategy, the strategy of using ISPs to warn culprits, and then cut off their service if they ignore warnings, looks very attractive. The punishment fits the crime more closely, and is likely to be more proportionate to its magnitude. But some open questions remain.

First, how does Verizon learn of alleged copyright infringement in the first place? Importantly, Verizon says it isn't monitoring what its customers download on the Internet. Instead, news reports indicate that copyright owners are capturing Internet Protocol addresses and then requesting, through the RIAA, that Verizon send out e-mail warnings. Verizon says that it does not disclose the identify of its customers to the RIAA, and that it would require a court subpoena before doing so.

Verizon should make these points abundantly clear in its notices and any other communications it has with subscribers, if it is to retain its customers' good faith. Surveilling loyal customers' downloads to catch the small minority of illegal downloaders would be unacceptable to many.

Second, can this business model work in the long run? Verizon will lose money when it terminates subscribers. Will the RIAA make up the difference? And some subscribers may flee Verizon (if there is another ISP option where they live) because they don't like the policing, no matter how many guarantees Verizon gives about user privacy. Again, without an RIAA subsidy, the company may lose money.

Third, there may be issues relating to service termination: How long does it last? Is it a temporary suspension, or something that has more lasting repercussions? If one ISP blacklists a subscriber, will it (or the RIAA) share the information with other ISPs? Will records of terminations differentiate between guilty and innocent household members?

Verizon and any other ISPs that partner with the RIAA need to offer more information on how the termination process works and, in particular, about how long the ISP will retained data about the identity of subscribers whose service has been cut off or suspended.

Fourth, and finally, will there be an appeals process within Verizon or other participating ISPs so that extenuating circumstances can be cited? For instance, what if someone within a household – such as a mad spouse or an angry child -- illegally downloads copyrighted material as a way of exacting revenge or causing trouble? Will innocent family or household members lose Internet service because of someone else's bad behavior? For instance, if the same roommate who illegally downloads, deals with the mail from Verizon, household policing could fail -- with all household members unfairly suffering when service is cut off.

In sum, this system ought, in theory, to work better than the system of settlements and lawsuits that preceded it – but the new system may could turn out to be another public relations nightmare unless the procedures the ISPs institute are fair.

Anita Ramasastry, a FindLaw columnist, is the D. Wayne and Anne Gittinger Professor of Law at the University of Washington School of Law in Seattle and a Director of the Shidler Center for Law, Commerce & Technology. She has previously written on business law, cyberlaw, computer data security issues, and other legal issues for this site, which contains an archive of her columns.

Ramasastry is currently on leave from the University to work for the federal government. The views expressed in this column aresolely those of Ramasastry in her personal capacity anddo not necessarily represent the views of any of her employers, past or present.

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