A U.S. District Court Judge’s order requiring Internet Service Provider Time Warner to identify hundreds of its customers accused of illegally downloading movies has raised concerns among ISPs over who should be policing the Internet for illegal downloads
March 22, District of Columbia Judge Beryl A. Howell ordered Time Warner to release the identities of approximately 250 ISP subscribers allegedly responsible for illegal downloads. Time Warner had sought to reject subpoenas from three plaintiffs—Maverick Entertainment Group, Donkeyball Movie Group, and Call of the Wild Movie—seeking the identities and additional information of its subscribers.
At issue is how an industry confronts illegal downloading, a crime made easier by technological advances. The Recording Industry Association of America (RIAA) claims 30 billion copies of songs were illegally downloaded on file-sharing networks from 2004 to 2009.
‘Expensive and Time-Consuming’
Howell dismissed the Maverick subpoena because it wasn’t properly served. The Maverick document requests names and information of an additional 700 Time Warner subscribers.
Time Warner initially refused to release the information and asked Howell to reject the subpoenas because fulfilling the requests would be “unfairly expensive and time-consuming.”
Current copyright laws require the copyright holder to notify ISPs about specific acts of copyright infringement. Usually, copyright owners have only a computer Internet protocol address and are required by law to obtain a court order for the ISP to release the identities.
Spokesman Jonathan Lamy says the RIAA doesn’t support forcing ISPs to police their own customers, but he said they can do more to discourage piracy.
“One example would be so-called graduated-response programs whereby subscribers who are caught repeatedly for illegally uploading copyrighted works are alerted to that fact by the ISP and then eventually face some sort of escalating series of sanctions if they repeatedly continue to break the law,” Lamy said.
Those programs would be voluntary and would not be imposed by legislation or government regulation, Lamy said. He described it as a “marketplace agreement between industries” who both work for a “thriving legal marketplace.”
“It’s about alerting and educating subscribers that their account is being used for illegal activity,” Lamy said. “And in fact, most ‘terms of service’ that a subscriber signs with an ISP already call for the subscriber to comply with the law. So, nothing that is envisioned in such an approach is inconsistent with existing terms of services that subscribers have already signed.”
‘Kind of Absurd’
Jacqueline Lipton, a professor of technology law at Case Western Reserve University, said the courts have put the onus on copyright holders to have detailed notices on infringement claims and have not allowed “fishing expeditions” when going after customer identities.
“This balance seems to have worked out fairly well in the copyright context so far,” Lipton said. “There will never be an easy answer to this issue, and it may be that the approach always has to be somewhat ‘context specific’ for legal and regulatory bodies such as courts and legislatures to work out who is in the best position to monitor and/or prevent the wrong, and who can do it with the least cost.”
Lipton called the issue of ISP liability a difficult balancing act. Lipton says if liability is attached too easily, the cost for those companies would increase and create an Internet “haves/have nots” of customers who could afford expensive ISPs.
But Lipton said an argument can be made that ISPs should not be able to flout the law by avoiding any kind of liability “even in circumstances where they have been told of what their customers are doing and have willfully turned a blind eye.”
Diane Katz, a research fellow in Regulatory Policy with the Heritage Foundation, compares holding ISPs responsible for monitoring their customers for illegal downloading to a tale of a bank robbery.
“The robbers are robbing a bank and the getaway car is a Chrysler,” Katz said. “Are they asking Chrysler to go after the robbers? It seems kind of absurd.”
Tom Gantert ([email protected]) is senior capitol correspondent for the Mackinac Center for Public Policy in Midland, Michigan.
“Memorandum Opinion: U.S. District Court on Time Warner Illegal Downloads,” Judge Beryl A. Howell, March 22, 2011: http://www.heartland.org/infotech-news.org/article/29886/Memorandum_Opinion_US_District_Court_on_Time_Warner_Illegal_Downloads.html