Fixing the Music Industrys Fix for P2P File-Sharing

The Need for a Ticketing Component Integrated into the RIAA and ISPs Graduated Response Program
By: Matthew Pruitt 2400 NW 30th St. Oklahoma City, OK 73112 702.574.2341 mpruitt.stu@my.okcu.edu

The recording industrys new graduated response program meant to deter P2P file-sharing falls short of actual deterrence. A monetary ticketing system, a system of privately enforced micro-settlements, when added to the graduated response program, would add a powerful deterrent effect to the program. Page | 1

Fixing the Music Industrys Fix for P2P File-Sharing: The Need for a Ticketing Component Integrated into the RIAA and ISPs Graduated Response Program

I. Background Sound recording copyrights are quickly becoming irrelevant. A growing number of the rising generation are losing trust in the traditional label model and feel anything they can get over the Internet should be free. The record industry reacted to this trend with lawsuits and public relations, but ultimately missed its chance to be proactive. If the recording industry is to re-instill respect for its closely-held copyrights, it needs to act quickly in a more effective manner. Lawsuits have been ineffective in persuading young people to change their file-sharing habits because these suits are not pervasive enough among society, and young people do not believe such a suit would ever be brought against them. The recording industry has taken a new direction in the battle against Internet piracy and peer-to-peer (P2P) file-sharing.1 The new efforts are rooted in a combined effort between the recording industry and Internet Service Providers (ISPs) in creating a graduated response program. The graduated response program provides an alternative to costly lawsuits by creating what is substantially a warning system. By agreement between the recording industry and ISPs, written notifications are mailed by the ISP to alleged infringers and, depending on the ISPs policy, the repeat infringers are sometimes threatened with a slowing or termination of service.

Peer-to-peer file-sharing is a method of exchanging digital files over the Internet without the necessity of a central host.

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A graduated response program has several benefits. Benefits include reduced litigation costs, preservation of ISP subscriber anonymity, and potentially a termination of service for repeat infringers. But the graduated response program in current practice runs short of its potential as it fails to provide a significant disincentive to persuade infringers to cease their illegal activities. Even a termination of service is insufficient with the growing number of alternate ways to connect to the Internet. One way to increase the effectiveness of a graduated response program is to combine such program with a financial determent, similar to the use of tickets in the enforcement of traffic laws. Instead of just mailing out warning letters to alleged infringers, the recording industry and ISPs should be sending out tickets, and fining infringers for their actions. How this can be done legally and effectively will be discussed throughout the remainder of this article. I. II. III. IV. Background The Graduated Response Program The Ticketing Concept Conclusion

II. The Graduated Response Program In 2008, when the RIAA announced that it would cease lawsuits against individual consumers, it also announced it had entered into preliminary agreements with major ISPs to enact a graduated response program.2 The graduated response system is similar to the system provided for in the DMCA.3 The core of the RIAAs new graduated response plan is to continue monitoring P2P file sharing and then notifying a users ISP by email when it finds an ISP
2

Sara Smith, RIAA Signs ISP Agreement to Block Illegal Music Downloading, NEWSOXY, Dec. 24, 2008, http://www.newsoxy.com/technology/riaa/article11528.html. 3 Editorial, A New Tune: Lawsuits Against Music Pirates Too Often Miss Their Mark. So the Major Labels Are Changing Tactics, L.A. TIMES, Dec. 20, 2008, at 30; see Digital Millennium Copyright Act, 17 USC 12, 512(i) (2010).

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subscriber has engaged in infringing activity. The idea is that after the ISP receives an email from the RIAA, it will either forward the RIAAs message to the ISP subscriber, or ask the subscriber itself to stop the infringement. If the subscriber continues in infringing activity, the ISP may send additional warnings, followed by slowing the subscribers Internet speed or altogether disconnecting the subscribers Internet. It may also still end in litigation if the subscriber is persistent in his or her infringement.4 It's difficult to believe that sending warning letters, even with the future possibility of service termination, is enough of a deterrent to stop regular infringers from downloading.5 While the proposed graduated response program may increase the RIAAs communication with Internet subscribers, its empty threats do little to decrease the prevalence of online music piracy.6 An infringer who lives in an area with more than one Internet provider will not be deterred by the threat of cancelling his Internet until hes exhausted every last one. Whereas in the past many markets were limited as to available Internet providers, todays market provides consumers with a great number of options, from cable, to DSL, to a 4G wireless connection. The graduated response program can work, but it needs something more backing it up and giving infringers a reason to listen to the RIAAs didactic epistles. Some have suggested that a criminalization of copyright infringement would be the ideal way to get infringers to listen.7 They have called for substantial punishments similar to the punishments for shoplifting a CD from a music store. These punishments often include substantial fines and jail time. While this method of enforcement may be optimal, it requires
4

David McGill, New Year, New Catch 22, 27 ENT. & SPORTS LAW., Spring 2009, at 7-10; see also Sarah McBride & Ethan Smith, Music Industry to Abandon Mass Suits, PITT. POST-GAZETTE, Dec. 20, 2008, at C8. 5 McGill, supra note 4, at 7-10. 6 Editorial, supra note 3, at 30. 7 McGill, supra note 4, at 7-10.

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legislation that is unlikely to ever be passed by Congress. Also, it would be vastly unpopular among the American people to pass a law declaring millions of otherwise law-abiding citizens to be criminals subject to jail time. Thus, for political reasons, the criminalization of copyright infringement will never work so long as a substantial number of U.S. voters sympathize with infringers or are infringers themselves. Instead the industry should consider a similarly effective system, but a system that is privately run and requires little to no legislation. Such a system would administer a small monetary punishment, similar to the cost of a traffic ticket, which could be efficiently enforced with the same ease that parking and traffic tickets are enforced. Much as traffic tickets reduce violations of traffic laws, a copyright ticketing system coupled with the RIAAs graduated response plan would effectively deter violations of copyright laws. The threat of a monetary fine has kept citizens abiding by traffic laws for years. Yes, there will always be some who will break the law anyway, but when you take away the fines, that number of people will sky rocket. In a study monitoring the effectiveness of highway traffic cameras, the Arizona Department of Transportation found that speeding violations increased by more than 1000% absent the publicized monitoring of speed and sending of tickets. This statistic makes it blatantly obvious how public perception of a heightened probability of a monetary fine strongly discourages the public from breaking the law.8 Chances are good that a similar strategy would be effective in deterring other illegal activity such as P2P file-sharing. A correctly administered copyright ticketing system would have the deterrent effect that the recording industry had hoped to see during its consumer lawsuits, and, combined with the industrys graduated response program, would enjoy powerful enforceability through the joint cooperation of ISPs and record labels.

Arizona State University et al., Evaluation of the City of Scottsdale Loop 101 Photo Enforcement Demonstration Program, ARIZONA DEPARTMENT OF TRANSPORTATION, Report No. AZ-07-684, at 2 (2007).

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III. The Ticketing Concept A copyright ticketing system would work essentially like a traffic ticketing system except it would be a privatized operation based on small settlements, rather than in-court adjudication. These micro-settlements, or tickets, in sufficient quantities, would serve an effective deterrent to future copyright infringement on P2P networks. Increased ticketing for traffic violations has been shown to correlate strongly with a decrease in actual traffic law infringements. Specifically, in 2007, Arizona State Universitys Department of Civil & Environmental Engineering conducted a study authorized by Arizonas Department of Transportation evaluating the effectiveness of the City of Scottsdales Loop 101 photo enforcement demonstration program. The study found that during the advertised eightmonth enforcement period, with cameras in use and tickets being sent to vehicle owners, the cameras detected an average of 129.7 vehicles per day exceeding the posted speed limit, but after the enforcement period that number jumped to an astounding 1482.4 vehicles an increase of more than 1000% percent. Four months after the enforcement period was discontinued the program was reactivated and again monitored as part of the study. This time the study found that the number of speed limit violations had indeed dropped to a similar number as before, at 134.68 vehicles per day.9 A number of similar studies have yielded similar results.10 These astounding results from traffic enforcement studies offer an optimistic outlook to the effectiveness of a copyright ticketing program that utilizes a similar system of monitoring and enforcement. Part of the effectiveness of the traffic cameras used in the Arizona study was due to public perception

Arizona State University et al., Supra note 8, at 2. See Illinois Center for Transportation et al., Speed Photo-Radar Enforcement Evaluation in Illinois Work Zones, ILLINOIS DEPT. OF TRANSP., Report No. FHWA-ICT-10-064, at 3 (2010).
10

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of the risk, so it is inherently important to a copyright ticketing program that every subscriber be informed of the new policies. Perhaps the most efficient way to do this is through mailings sent out by the individual ISPs to their subscribers. Similar to effective traffic enforcement systems, a copyright ticketing system will need to utilize a well-publicized monitoring system coupled with an efficient adjudicatory process. The recording industry is already familiar with effective ways to monitor P2P traffic. During the RIAAs campaign of consumer lawsuits the recording industry employed SafeNet to monitor infringing Internet traffic. SafeNet is an independent company that focuses on the protection of high-value information assets.11 SafeNet logs onto file-sharing services just like any other filesharing user would and it searches for its clients sound recordings. When it finds a user distributing those recordings it then collects a wide array of data and information showing the communication between SafeNets computer and the hosts computer. SafeNet will even download a sample of the work being distributed so the record labels can confirm that it is in fact their clients recording. Through this process SafeNet is able to identify the infringers unique internet protocol, or IP, address, which is a series of numbers that the ISPs can use to identify their subscribers.12 A copyright ticketing system would utilize a company similar to SafeNet to determine copyright infringers deserving of tickets. Labels would then notify ISPs of discovered infringers IP addresses and send tickets which the ISPs would forward to their subscribers. Alleged infringers would stay anonymous while paying online as the infringer would remain known to the RIAA only by the IP address and a unique identification number assigned to each
11 12

About SafeNet, http://www.safenet-inc.com/About/ (last visited Nov. 4, 2010). Industrys Lead counsel in Music-Sharing Suits Discusses Procedural Aspects of Campaign, 6:2 INTERNET L. & STRATEGY I (Feb. 2008); McGill, supra note 4, at 7-10.

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ticket. Subscribers should be given the opportunity to contest the ticket, but if the subscriber refuses to pay the ticket after an unsuccessful contesting of it, then ISP policies are put in motion to slow or disconnect the Internet service of repeat infringers. Repeat infringers who continue to infringe after multiple notices and tickets are still taken to trial by the RIAA using traditional methods. The RIAA will need to exercise considerable efforts in acquiring the cooperation of ISPs in carrying out the ticketing system, but it should not be long before ISPs begin to get on board. The interests of ISPs and the entertainment industry are continually growing closer. ISPs are seeking to have access to more and more content and large mergers are occurring between ISPs and the parent companies of entertainment content creators.13 Also, while ISPs do not want to lose customers, they would be happy to see the bandwidth-consuming P2P file mega-sharers get kicked off their networks. Of course they would when P2P traffic overall accounts for 45 to 70 percent of traffic on their networks.14 The RIAA will obviously want to pay its program operating costs with its ticketing revenue, but while high fines and new revenue flow may be tempting, the RIAA should keep the ticket amounts low. The ticket amounts should be in the range that a majority of file-sharers can afford to pay. Inasmuch as a large portion of file-sharers are college students, they most likely cannot afford much. Also, college ISPs will be less likely to participate in a ticketing system if that system imposes a high cost on its students. A ballpark range of a ticket would be similar to a speeding ticket, or somewhere between $20 and $200, depending on the level of infringement.
13

Dave Parrack, Virgin Media Backtracks Over Illegal File-Sharing BPI Warning Letters, TECH.BLORGE, July 3, 2008, http://tech.blorge.com/Structure:%20/2008/07/03/virgin-media-backtracks-over-illegal-file-sharing-bpi-warningletters/; Larry Dignan, Why RIAA, ISP Cooperation May Deliver Returns for Both Sides, ZDNET, Jan. 29, 2009, http://www.zdnet.com/blog/btl/why-riaa-isp-cooperation-may-deliver-returns-for-both-sides/11893. 14 Eric Bangeman, Study: BitTorrent Sees Big Growth, LimeWire Still #1 P2P App, ARS TECHNICA, Apr. 21, 2008, http://arstechnica.com/old/content/2008/04/study-bittorren-sees-big-growth-limewire-still-1-p2p-app.ars.

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The level of infringement should be gauged on the number of songs infringed within a certain tracking period. If, for example, an infringer shares 20 songs within a few days or within a few months of being tracked, he should only be sent one ticket, but the amount of that ticket will be higher the more songs he has been caught uploading. The amount of the ticket may need to be negotiated a bit with certain ISPs (for example, college ISPs), but should stay mostly consistent across the board. The fine should escalate if not paid within a certain number of days and a threat as to the slowing or termination of service may be used to encourage prompt payment if the ISP allows it. There should be a formal appeals process for those who maintain their innocence by providing an address for alleged infringers to mail in their written appeal within a certain number of days. An appeals process using an independent arbitrator to review appeal letters will be beneficial to the RIAA by reducing the number of cases that actually move past the ticket stage and into pre-trial stage where the RIAA would need to issue subpoenas and perform discovery. Preventing that reduces overall costs and increases the likelihood that those cases which actually make it to trial have the most merit. If an alleged infringer fails to pay his or her ticket after an unsuccessful appeal or after failing to appeal, the RIAA still has several options to explore before taking the case to trial. The RIAAs first response should be with follow-up notices, coordinated with the ISP, reminding the subscriber of the ticket and advising them of a schedule of increasing fines (or, in other words, a higher settlement) which they will face if they refuse to pay over an extended period of time. Alleged infringers should be given at least 30 days to comply with the first ticket and then there should be an increase in the fine in small increments, the total of which not to exceed double the initial ticket amount. The late fees should be allowed to accumulate for at least 60 days before
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further action is pursued. Those who simply in good faith did not receive the notice and can document some reason, such as being out of town, should be given additional time to pay their fine without a late penalty. At some point if the alleged infringer refuses to pay the fine, then the RIAA should appeal to the ISP to slow the subscribers Internet connection in accordance with the ISPs policy and subscriber agreement. The RIAA should also request that if the ISP is aware of the particular subscriber continuing to infringe copyrighted material after being given multiple notices and ample time to pay a fine, then the ISP should eventually terminate service to the subscriber. Under the DMCA an ISP is required to have a policy for terminating the subscriber and reasonably implement it if the ISP knows of actual repeat infringement by the subscriber, or else lose its safe harbor status.15 A settlement containing an admission of guilt reported to the ISP should be enough to establish actual knowledge of the infringement by the ISP. A good policy which ISPs should be encouraged to adopt is the three strike rule followed by YouTube. YouTube assigns one strike to a user when (1) it receives a single DMCA take-down notice identifying multiple videos uploaded by the user, and (2) when multiple take-down notices identifying videos uploaded by the user are received by YouTube within a two-hour period. So it is not one strike per infringement, but one strike per notice, or notices within a two-hour period.16 When the ISP has to resort to cancelling the subscribers service, this is the time to resort to traditional tactics. Sue those who most deserve to be sued. The tactics will be very similar to those during the time of the RIAAs mass consumer lawsuits, except the number of lawsuits brought should be fewer in number and cases actually making it to trial should have more merit

15 16

David Nimmer, Copyright Illuminated: Refocusing the Diffuse U.S. Statute 276 (Kluwer Law Intl 2008). Viacom Intl Inc. v. YouTube, Inc., 07 Civ. 3582 (S.D.N.Y. 2010).

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and stronger evidence. The RIAA will now also have an additional asset of evidence in the form of an implicit confession from anyone who previously paid a ticket but then continued to infringe. Such a confession could be used to impeach contrary testimony in court. To facilitate such, the ticket should expressly state that payment of the micro-settlement does not bar the copyright owner from bringing future suit on the alleged infringers infringement if he or she fails to cease and desist. The RIAA should expect some immediate backlash from outspoken critics, but this should die off in time as society gets used to the new system. The RIAAs image cannot get much more tarnished than it already is. The largest concern for the RIAA second only to the initial communication to subscribers should be communicating with Congress. While the ticketing system and graduated response program can be administered privately without passing new laws, Congress could help support industry efforts by passing laws which would persuade ISPs to be more cooperative in the program. The worst thing the music industry could possibly do now is to back down and lazily send empty-threat warning notices. Such inaction would send a message to the world that copyrighted file-sharing is not that bad, or that even if it is not the right thing to do they can still get away with it. The RIAA should act swiftly by building relationships with ISPs and carrying out a graduated response system with a fully-implemented ticketing system which provides the monetary incentive necessary to deter illegal conduct and reverse the social expectation that everything on the Internet should be free.

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IV. Conclusion As the recording industry moves forward and pursues a graduated response system, it is important that the RIAA and member institutions include action to backup their letters. This will be most effectively done in cooperation with ISPs using a traffic-ticket-like system where ISP subscribers are issued small settlements which are paid anonymously online. This system will help preserve the benefits of the graduated response system, including reduced litigation costs, preservation of ISP subscriber anonymity, and potentially a termination of service for repeat infringers. But in addition to that it will also provide a more persuasive reason for infringers to stop their illegal actions, a necessary component in the war against P2P piracy.

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This article has not received prior publication and is original work prepared alone by the author, Matthew McLane Pruitt. Ownership of this article is hereby transmitted to the GRAMMY Foundation. I hereby certify and grant, Matthew M. Pruitt (1/3/2011)

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