Broadband Reports, May 12, 2008

Looking closely at new incumbent anti-piracy plans, the passage of the new Pro-IP Act and the new P4P Working Group, you'll notice we've entered a new era of copyright-enforcement where ISPs plan to play a much greater role in protecting copyright law. ISPs used to claim they didn't want the liability associated with being Internet content police. They begrudgingly passed on DMCA warning letters to users, but didn't give a damn whether you read it or used it for cat box filler. Things have changed.

On the heels of similar discussion in France and the UK, Mike Masnick alerts me to the fact that Canada may be the latest country to implement a "three strikes and you're out" anti-piracy policy. Under such systems, first offense users would get a warnings, while second and third offense users would face account suspension and, ultimately, account termination. A number of converging trends indicate we're not far from such a system here in the United States.

The process is already well underway. As I reported last week, Comcast is considering coming down harder on DMCA abusers as part of a significant policy shift. Whereas warnings were simply passed on and ignored before, now users who receive four warnings in twelve months would face account termination. Meanwhile, AT&T has been working on their own piracy filters, which I'd assume could have similar penalties (AT&T isn't ready to discuss the plans in more detail).

Four years ago, both of these providers were more than happy to let P2P piracy flourish. What changed?

For one, broadband growth has slowed. While the industry would never admit they promoted piracy, for years they've used the promise of free music to turn millions on to broadband. Now that we've reached a saturation point where there's fewer dial-up customers to lure, piracy no longer serves its purpose as a marketing tool. The game now is about retaining existing customers and locking them into long term contracts.

Secondly, the RIAA & MPAA have been working hard (and apparently succeeding) in convincing many ISPs that fighting piracy means less money spent on infrastructure. As Comcast lawyers have realized, a greater role in piracy prevention is also one way to get the FCC and the network neutrality brigades off of their back. They can set clear limits ("we only throttle illegal traffic"), and clearly communicate this to customers without taking heat from consumer advocates.

And lastly (and probably most obviously) both Comcast and AT&T are terrified of being "dumb pipe" providers, and increasingly see a future in content distribution. They're clearly now facing piracy as a direct competitor.

The problem is, I don't want the RIAA's secretive, unaccountable henchmen at BayTSP (think of them as the RIAA's CIA, responsible for targeting users who'll get DMCA abuse letters) determining whether my broadband connection works in the morning. Combine BayTSP's traditionally spotty piracy detection history with piracy filtering technology that doesn't work yet and you're looking at a large number of false positives.

False positives mean more support headaches and a decline in support quality. Money spent on dealing with angry customers and implementing piracy filtering technology is money that could have been spent on infrastructure or existing support problems. ISPs can barely handle tracking simple things like whether a modem is rented or owned, or whether a user is under contract.

Now imagine them attempting international copyright enforcement.ISPs are also looking at giving whatever ISP decides to not to play RIAA/MPAA wet nurse a distinct marketing advantage. While Comcast and AT&T's plans remain in the developmental stage, I can say with certainty they'd face a significant consumer exodus to regional competitors -- assuming there are any. While it may not be bringing in as many new subscribers, piracy remains this industry's not-so-secret "killer app."

Hey ISPs, fighting piracy has proven to be not only a money sink, but it's an uphill battle with negligible results. Why make the entertainment industry's problem your problem too?

This article is copyrighted material, the use of which has not been specifically authorized by the copyright owner. We are making such material available in our efforts to advance understanding of environmental, political, human rights, economic, democracy, scientific, and social justice issues, etc. We believe this constitutes a 'fair use' of any such copyrighted material as provided for in section 107 of the US Copyright Law. In accordance with Title 17 U.S.C. Section 107, the material on this site is distributed without profit to those who have expressed a prior interest in receiving the included information for research and educational purposes. For more information go to: http://www.law.cornell.edu/uscode/17/107.shtml. If you wish to use copyrighted material from this site for purposes of your own that go beyond fair use, you must obtain permission from the copyright owner.