ISPs and Music in the US: The Warning Was On Your Desktop

On January 20, 2010, CNET news reported that Verizon had acknowledged disconnecting the service of users who had repeatedly been accused of copyright infringement[1]. That same evening, Verizon spokeswoman Bobbi Henson refuted the report, claiming she was misquoted[2]. In the ensuing days, Verizon would claim that its practice of sending warning letters to accused infringers had never resulted in any service interruption.

While it is possible that CNET executive editor David Carnoy accidentally misquoted Henson, it is more likely that Verizon balked at the thought of the general public becoming aware of its new policy and never interrupted user services. The event seems to epitomize a lack of commitment by Internet service providers (ISPs) to shuttering off infringing subscribers in the US–even while that same idea seems to be gaining ground overseas (see The MBJ, cover article, Dec. 2009; available at www.

Late in December 2008, the RIAA announced that they would cease filing new suits against accused file sharers.[3] The RIAA insisted that they had reached agreements with many ISPs to adopt a graduated response strategy that could be enforced outside of court. In effect, a graduated response strategy is very similar to a three-strikes policy (see The MBJ, op.cit.). The main difference is that the graduated response is not relegated to three offenses, and tends to be market-based and not instituted by a governing body. The RIAA’s “subpoena, settle, or sue” process proved to be tremendously expensive. While racking up millions of dollars worth of lawyers’ fees, the few examples brought to court only hurt the RIAA’s reputation with the general public. That public, after all, was a sought for ally in the fight against piracy.

Despite this announcement, there was no acknowledgement of any such agreement between the RIAA and the ISPs. In March of 2009, AT&T and Comcast described their plans to work with the music industry and fight copyright infringement at the Leadership Music Digital Summit in Nashville, TN.[4] During the panel, their spokespeople acknowledged that neither company had threatened to cut off subscribers’ Internet access as part of a graduated response strategy. Instead, they outlined their approach, which was to send letters to the accused infringers, informing them that they could be in breach of their agreement with the ISP.

The ISPs maintain that none of the monitoring of illegal downloads should happen at their end: it is the copyright owner who has to be responsible for capturing Internet addresses and making a request for a warning to be sent out to the infringing sunscriber . The service providers have most definitely been approaching this subject with a great deal of care, seemingly aware of the negative public connotations of submitting to the will of the RIAA– not to mention the multitudes of potential problems that could result from such a policy.

Privacy concerns seem to be at the forefront of complaints about potential service disruptions, while others see the access to information via the Internet as a human right that, arguably, is inalienable. Most notably, a recent story out of Pueblo, Colorado well illustrates the potential complications of cutting off service to subscribers.

Cathi Paradiso, a Colorado based technical recruiter and 53-year-old grandmother, was recently wrongly accused of pirating movies and her Internet service was subsequently suspended. [5] In a phone call with a Qwest Communications service representative, Paradiso was told that if she were accused of copyright infringement again, her account would be terminated. She was also told that she would have a hard time acquiring a new service, as the other ISPs in the area would have her name on file. In a plea to a few of the movie studios that kept accusing her of downloading movies illegally she wrote, “Take me off your list… You’ll need to admit you made a mistake and move on to the correct perpetrator… My computer is not a toy. My livelihood depends on my ISP’s reliability.” Indeed, as Ms. Paradiso works out of her home. She would later be cleared of the accusations, and a subsequent investigation after repeated media inquiries by a Qwest technician indicated that her network had been compromised.

If ISPs are going to slowly warm to the idea of instituting a potentially industry-wide graduated response policy, there will need to be an advocacy group dedicated to hearing complaints of the likes of Ms. Paradiso’s. In her case, she had no third party to turn to, and no oversight committee or advocacy group to defend her. With a secured connection, none of this would have happened. However, there seems to be no sure way to secure every individual household’s Internet connection without other legislation or industry-wide practices. Due process will continue to be a main concern until some sort of standardized review process is agreed upon and instituted accordingly.

Especially in the face of the recent introduction of three-strikes legislature in France and ongoing talks in the UK, ISPs are proving to be partners, albeit reluctant partners, with rights holders in finding solutions to these problems. ISPs and entertainment companies seem to agree that some sort of review process should be put into place, and those accused of downloading illegally should be given fair warning before any service interruption takes place.

Some good news has surfaced with regard to the effectiveness of the warning e-mails sent by ISPs. Verizon spokeswoman Bobbi Henson noted that the warning letters they have sent to their DSL and FiOS broadband subscribers have worked surprisingly well. “We don’t have to warn most people a second time” she said, “Most people stop, or they tell whoever is doing it to stop.” She said it seems that many people aren’t aware that someone using their connection is downloading content illegally. “You get a teenager doing it,” she suggests, “and the parent gets the e-mail, and they tell them to cut it out.” Most of those who have received e-mails and been interviewed afterwards have indicated that it scared them straight. Even Ms. Paradiso, who had never downloaded any illegal content, was adamant: “I’ve never downloaded a movie or song in my life…I’m so paranoid now, I won’t buy music of movies online ever.”

The Internet service providers have unwillingly been thrust in the middle of a battle between rights holders and copyright infringers, notwithstanding their reluctance to fully admit their position. While a few ISPs like Qwest and Cox Communications have started terminating their users’ access in the case of multiple infringements, most ISPs are still too shy to commit publicly. It should be noted that at the very least, ISPs seem well aware that a core utility of the Internet connection they provide encapsulates media in all forms. Finding legal and profitable solutions to the pervasive nature of illegal content is, therefore, in everyone’s best interest.

By Michael Benson






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