RIAA Battles Now Shift to ISPs

According to a Wall Street Journal article, the RIAA is set to move away from its strategy of suing individuals for allegedly downloading copyrighted music without permission. After more than 35,000 lawsuits and lots of negative press, the association apparently has decided that legal due process has its downsides.

It is this "no more RIAA lawsuits!" shoe that has been making most of the headlines today. The other shoe, however, remains to be dropped, and we're not talking any little old Muntader al Zeidi size 9 shoe here -- this other shoe could be one of those monster Shaquille O'Neil size 23s.

According to the WSJ, the RIAA is negotiating agreements with Internet service providers to implement some form of a "three strikes" policy. As described in the article, the three strikes policy would work something like this:

The RIAA "will send an email to the provider when it finds a provider's customers making music available online for others to take.

"Depending on the agreement, the ISP will either forward the note to customers, or alert customers that they appear to be uploading music illegally, and ask them to stop. If the customers continue the file-sharing, they will get one or two more emails, perhaps accompanied by slower service from the provider. Finally, the ISP may cut off their access altogether."

The three strikes enforcement policy avoids all of that expense, delay, and publicity of a court battle. Oh, and due process. That's out too. With copyright law being as nuanced as it is, and far from clear on so many issues, this three strikes policy is more likely to tread on more listeners' legal rights than is the present policy of individual lawsuits. Are ISPs now going to become the arbiters of fair use? Can we really expect them to devote the time and money to decide competently whether an individual listener's downloads were legal or not?

The Electronic Frontier Foundation has a good post discussing these issues in more detail.