In a stunning turn of events, the US music industry has ceased its long-time litigation strategy of suing individual P2P file-swappers. Instead, with New York Attorney General Andrew Cuomo acting as a broker, the RIAA has signed voluntary "graduated response" agreements with major Internet service providers. Those currently on the receiving end of an RIAA lawsuit, though, will have to see it through to the (very) bitter end.
The Wall Street Journal (subscription) broke the story, and Ars has confirmed all details given in the piece.
Europe-style graduated responses
While the agreement itself comes as a surprise after years of lawsuits that have numbered in the tens of thousands, the contours of the deal remain comfortably familiar. Europe is leading the way in hashing out graduated response programs, and the RIAA plan sounds like a mix of the current British and French approaches to the issues.
As in Britain, the deal is voluntary, has no official government enforcement, and will not have ISPs passing user information on to the RIAA. Instead, the RIAA notifies ISPs about suspected infringement using IP addresses; the ISP then privately looks up its subscriber information and forwards a notice telling the person to stop.
But, as in France, penalties are coming (the voluntary UK scheme is currently "notification only"). They remain undefined at the moment, though the RIAA confirms to Ars that they will include account suspension for users who continue to share files illegally.
The key difference between Europe and the US is the lack of government pressure. New York Attorney General Cuomo did make it clear to the music industry that the lawsuits have been unhelpful and that he hoped to see a different approach, but nothing like the government pressure to cut a deal that we have seen in the UK or France has been mooted here.
Which leads to the obvious question: what do ISPs get out of the deal? They aren't under any serious pressure to act on this if they don't believe it to be in the interests of their companies or subscribers, but the RIAA makes clear that several leading ISPs are already on board. But they do get a tremendous goodie bag under the Christmas tree: congestion relief.
ISPs have been worried about P2P traffic, especially on access networks (and especially on upstream access networks in cable systems), but the "net neutrality" debate and the Comcast P2P case at the FCC have limited the options that American ISPs can take. The solution many appeared to settle on was nondiscriminatory bandwidth capping; that is, do whatever you want with your connection, use any protocol or application, but you only get a certain amount of monthly capacity.
Suddenly, ISPs gain a tremendous new tool. One study in the UK showed that most people sharing music would stop when made aware that their activity was being tracked and that they were not, in fact, anonymous. Should that hold true in the US, ISPs would presumably see massive decreases in P2P traffic. The customer notifications can be blasted out by e-mail, making the whole process quick and easy for ISPs. As is usual for these sorts of schemes, questions still remain about what sorts of judicial processes will be in place to contest notifications and penalties, and what happens to a household Internet connection when Dad finds his access canceled even though he's never shared a file in his life?
The end of lawsuits
For now, though, the graduated response program will have one immediate effect. The file-sharing lawsuits will largely come to a halt, though the RIAA tells us it reserves the right to go after people who continue to ignore the notifications. That means colleges and universities no longer have to worry about "pre-litigation notices" and a stream of subpoenas seeking student info, dead grandmothers and kids in housing projects won't be hit up for $4,000 settlements, and an unbelievably brutal public relations disaster will basically come to an end.
As for current cases, tough luck; the RIAA intends to see them through. But what about Jammie Thomas, the single mother in Minnesota who found herself the most public face of the RIAA litigation campaign after the first full trial for illicit file-swapping? Thomas' trial is actually over, and the judge has vacated the original decision. The RIAA is seeking to have that original verdict restored, but if that fails, the RIAA will have to prosecute Thomas all over again in order to squeeze any cash out of the handful of songs she was accused of sharing.
Would they do it? An RIAA spokesperson tells us, "If the appeal is granted and an appeals court agrees with the jury in the original trial, she'll continue to be held liable." Reading between the lines, we might expect the case to go away if that original verdict is not reinstated.
A step in a better direction
News about the entire program will be controversial, but we think it's a big step in a better direction. The lawsuit campaign largely ends. Initial notifications about file-swapping will be purely informative, not punitive. The move does not introduce ISP filtering (notifications are generated by the RIAA), and neither does it pass user information from ISPs back to the music industry. It should eventually remove most of the reasons ISPs have trotted out to defend discriminatory traffic shaping. The Interwebs may get a bit faster. Interesting new music services that the RIAA has recently allowed, like Last.fm and the Amazon DRM-free music store, mean that more legal choices are available as a "carrot" to complement the new "stick."
The real question here is twofold. First, how will file-swappers respond? No doubt plenty will dig in, encrypt everything, switch to obscure protocols, or start using direct download services. A pretty tremendous percentage of casual users, though, will curtail their activity after receiving their first notice, especially once the ISP sanctions are finalized.
Second, how will other industries respond? Music is traded freely on the Internet, but in terms of volume, video content is the real target. The movie business will want in on the arrangement. After that, e-book vendors might demand ISP assistance, and so will the makers of crochet patterns (which turn out to be traded surprisingly often online without permission).
So long as two conditions are met, though—no ISP has to do any filtering, and a workable judicial process is in place to oversee the complaints and handle appeals—even widespread use of the program by many industries might not turn out to be a big deal, either for users or ISPs. Industry would police the 'Net, turn over the information, not get user information in return, and be accountable to some sort of oversight/appeals body. It could be a lot worse.
Plenty of "ifs" are involved in the new project, and there are plenty of unanswered questions. But the deal certainly sounds better than what preceded it, and not just "better" in the sense that it's better not to stab yourself in the hand than to stab yourself. Combined with the music industry's recent moves toward voluntary blanket license models, it's at least possible that the long-running Cold War between music fans and the major labels will undergo some global warming of its own.
Now, who do we talk to about putting out some better music?
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