Sunday, July 10, 2011

"Memo of understanding" between RIAA, MPAA, & which ISP's?

Thank you to the great Bruce Gain, an excellent investigative tech writer who's covering this subject, for bringing this issue to my attention:

It appears that the RIAA and the MPAA have gotten together and created a collusive "Memorandum of understanding" for ISP's to sign, which calls for the signing ISP's to assist the Big 4 record companies and the Big 6 motion picture companies in enforcing their copyrights, in ways never contemplated by the Digital Millenium Copyright Act

I haven't had time to analyze it yet (it's 36 pages), but at first glance it made me kind of ill, in that it appeared to...

-violate the antitrust laws of the federal government and of various states,
-constitute abuse of copyright,
-expand the lawful copyright monopoly into an unlawful monopoly,
-overlook the First Amendment,
-overlook the fair use defense and other defenses afforded by copyright law,
-conflict with the Digital Millennium Copyright Act,
-be against public policy, and
-contradict net neutrality.

What I'm wondering about is which, if any, ISP's have signed off on this, because I'd want to do my utmost to avoid doing business with them. The document I've seen is unsigned but lists some ISP's. If your ISP is on that list, and does sign, I recommend switching ISP's asap.

What ever happened to "free enterprise"?

Commentary & discussion:

Keywords: lawyer digital copyright law online internet law legal download upload peer to peer p2p file sharing filesharing music movies indie independent label freeculture creative commons pop/rock artists riaa independent mp3 cd favorite songs intellectual property portable music player Bookmark and Share


Anonymous said...

AT&T, Cablevision, Comcast, Time Warner Cable and Verizon are the names I've seen so far that have signed up.

Renee Marie Jones said...

The "independent" reviewers can actually be EMPLOYEES of the "administrating organization." On what planet is this "independent?"

Anonymous said...

If we had a Justice Dept. that was actually functional, these guys wouldn't even attempt this power grab. Unfortunately, no one is home at Justice. They're too busy chasing "terrorists," although they never seem to catch any. In this situation, the real terrorists are the RIAA, MPAA, and the colluding ISPs.

Anonymous said...

Switch to what? There are plenty of places where there is only one ISP, so it's them or no internet.

Justin Olbrantz (Quantam) said...

If I recall correctly, about 15% of people in the US have exactly 1 broadband ISP, about 70% have exactly 2, and 15% have more than 2.

Anonymous said...

Uh-Ohh... The memorandum states, "Funding for CCI will be provided fifty percent (50%) by the Participating Content Owners Group and fifty percent (50%) by the Participating ISPs." I wonder if the ISP monthly rates will increase to fund this mess. Duh...Ya think!

Matt Fitzpatrick said...

Well, put yourself in the ISPs' shoes. Defending an indirect copyright infringement claim in federal court is expensive as all hell.

Publishers can't say to ISPs, "sign this memorandum, install our monitoring software, hand over subscriber names when we ask, and let us delete their content without going through the DMCA process, or else we'll sue you." But they can say "we'd like you to voluntarily do all those things, and by the way, we sue a lot of ISPs who don't." It's still just as coercive.

If only the case law were more clear on indirect infringement issues, and if only courts were more willing to award costs to prevailing copyright defendants, maybe the ISPs wouldn't have to deal with these constant, escalating publisher demands.

Anonymous said...

Vigilant Law is alive and well in the USA

Anonymous said...

I suspect the recording associations of bullying the I.S.P.'s into unconscionable agreements to avoid legal liability court battles.

They seem to have overlooked the idea that this would mean they are no longer acting as a "common carrier" and would now , in fact become legally liable for illegal content distributed over their networks.

Where the hell is government authority?

usagemayvary said...

can this be challenged in some fashion given the potential law-breaking?

raybeckerman said...

We seem to be living in an age of government by corporation, where unelected for-profit multi-national corporations are in control, and 'government of the people, by the people, and for the people' -- while it may not have perished from the earth -- is at least on the verge of doing so.

raybeckerman said...

Dear Usage May Vary:

Damned right it can.

Anonymous said...

This would be prosecuted as an antitrust case if the Department of Justice was actually on the case. Which it obviously isn't.

In the meantime, I suggest researching private antitrust / anti-cartel remedies, if there are any in US law. :-P

It is absolutely true that any ISP agreeing to this gives up their common carrier protections, which would be deeply, deeply stupid of them, and would open them up to more lawsuits than they will EVER be able to handle, over every piece of data delivered over their network ever.

Anonymous said...

Some of the ISPs; Time Warner, Comcast are also the content owners.

raybeckerman said...

In the old days, when the antitrust laws were still enforced, the makers of the content couldn't also control the means of distribution.

Ronald Reagan succeeded in erasing that concept, as well as many other legal concepts, from our society.

Yuhong Bao said...

Here is Ars's take:

Anonymous said...

In my area, the only choices are ATT and Comcast, both on the list. To avoid them is to simply go without internet. I don't understand how this sort of thing can be allowed,but I won't be the least bit surprised it it happens.


Anonymous said...

To those who wonder why the Justice Department is not taking an active part it protecting the people from the power grab of the RIAA and MPAA..... Top Justice officials were plucked from the ranks of the RIAA in the last few years and planted in leading Justice Department positions creating a paid consortium of "Yes Men" when it comes to the wishes of the Cartel.

** On a separate note: I am tickled to see Mr. Beckerman is still kicking!!!!

Oldphart in Kansas

tebee said...

What ever happened to "free enterprise"?

Someone bought it!

Anonymous said...

I think what scares me most about the whole situation here is that it does not state the system, software, and operators used to seek out "copyright violators". I am involved enough in computers and software development to realize the errors people and software can make. There are going to be false findings and false accusations which will force the innocent to have to defend themselves. I don't know how else the average person will be able to do that other than say they did not do it. And, as we all know by now, the RIAA has a past history of not believing anyone even if there is overwhelming evidence of innocence. I believe the Justice Dept. really needs to look into this agreement and the methods used to find infringement before a wave of innocent people are accused and possibly forced to lose their internet rights and the financial burden of obtaining counsel.

Matt Fitzpatrick said...

So let's say I get strike six or seven, whatever it is, for copying a Basia MP3 over LimeWire, instead of ripping it off the CD I legally purchased 15 years ago. And let's say there's only one broadband provider at my residence. Despite my fair use claim, my ISP effectively bans me from the Internet (have you tried surfing at 28.8K lately? ugggh).

What's my recourse? The ISP's filtering software is my accuser, not Basia, not her songwriter, not her recording label. Legally, it seems I don't have a copyright dispute, I have a contract dispute.

So could this be an end-run around due process? A way to shunt accused consumers into prohibitively expensive arbitration with the ISP on contract grounds, instead of granting them access to the courts (and the possible reimbursement of costs and fees) on copyright grounds?

mathinker said...

@ Matt Fitzpatrick --- downloading material under copyright is illegal, even if you have bought a copy of the same material. The disparity between what many people believe is moral to do, and what is illegal, is quite large when it comes to copyright law.

@ everyone commenting about lack of ISP options --- I have a feeling that paying for offshore proxies will become quite popular if this enforcement regime actually starts to work.

Matt Fitzpatrick said...

Don't be so sure about that. Maybe a district court would find my hypothetical Basia download to be fair use. And maybe it wouldn't.

Either way, I won't know, because I won't have access to a district court on a copyright claim. I'll be in expensive arbitration over a contract dispute with my ISP, hoping the arbiter understands the nuances of fair use.

The winners here are clearly the publishers, who, as non-parties to the arbitration, are spared all legal expense of defending their copyright.

Maritess said...

Very informative post. Though I am not so sure about the issue but at least they have now an agreement of understanding.

Maritess from Acoustic Guitar Online

Anonymous said...

The language of the notice proposes to bind the end-users as well to a new framework.

Particularly they are saying that anything in the "independent" review between the accused user and the review board (funded 50/50 by the ISP's and the Content companies... really independent obviously) is not admissible in any further court proceeding.

Something smells awfully fishy here.