ISPs to play enforcement role in RIAA's plan

Hey service provider: Are you ready to do the dirty work of tracking down and rounding up illegal file-sharers?

That’s the role that the Recording Industry Association of America is proposing for Internet service providers. In a plan first unveiled late last week and reported by the Wall Street Journal, the RIAA is reportedly already working with ISPs on a new approach that involves the provider sending up to three emails to users who share music with others. After that, according to the plan, the ISP may cut off or restrict the user’s Internet access. The RIAA declined to name the ISPs it is working with.

This so-called “three-strikes” approach is being put forth as an alternative to RIAA lawsuits against individual file sharers, though the RIAA said it holds back the right to pursue individual lawsuits in the future. The RIAA has filed more than 35,000 lawsuits against individual music downloaders over the past five years. Even in the face of such lawsuits, the number of Internet users who download music via file-sharing has held steady over the past few years, at about one in five users, according to data from the NPD Group.

Such a three-strikes approach has been proposed in France, while UK ISPs have agreed to send out notices on behalf of the copyright holders but have stopped short of banning individual users. Meanwhile, according the Electronic Frontier Foundation, the European Parliament and the government of Sweden have rejected three-strikes approaches altogether.

“The problem is the lack of due process for those accused,” writes EFF senior staff attorney Fred von Lohmann on the EFF blog. “Mistakes are going to be made… Anyone who has ever had to fight to correct an error on their credit reports will be able to imagine the trouble we're in for.”

For the most part, ISPs have fought against having to be involved in targeting individual users – mainly due to concerns about getting in the middle of privacy issues -- though the topic has been relatively quiet for several years. During that time, service providers have been more focused on dealing with the bandwidth crunch file-sharing places on their networks.

Efforts to use technology like deep packet inspection (DPI) to manage bandwidth spikes has proven effective at some ISPs. UK ISP PlusNet, for example, has slashed the percentage of bandwidth on its network taken up by BitTorrent downloads at peak times from 60% to 30% using DPI, according to PlusNet Chief Technology Officer Alistair Wyse. But the practice has not been without controversy, as Comcast’s use of DPI was slammed by the FCC, leading the cable operator to tweak its approach.

The fact that ISPs are open to packet-inspection to save bandwidth but not to combat piracy has not gone unnoticed by the RIAA and will likely be used as a bargaining chip with service providers. Indeed, with providers like AT&T and Verizon becoming much closer partners with content providers thanks to their growing video and IPTV products, it may be harder to stay on the sidelines of the three-strikes debate.