One week left before US faces clamp down on piracy

Major ISPs combine on six strikes policy

As Americans settle in for the Thanksgiving weekend of food and family, filesharing traffic traditionally shows a modest rise. But those downloading content may look back on this holiday as the last golden weekend of piracy if the major ISPs have anything to do with it.

Next week AT&T, Cablevision, Comcast, Time Warner Cable and Verizon will be signing up to a monitoring system run by the Center for Copyright Information (CCI). This organization will check for the IP addresses engaged in peer to peer or torrent downloading of copyrighted material and alert ISPs.

Meet the new boss

The public face of the CCI is Jill Lesser, director of the Civic Media Project at People for the American Way monitoring group and a respected figure in the industry. The CCI has an advisory body with some impressive members, including internet rights group Public Knowledge.

But for day-to-day operations the chairman of the CCI board is Thomas Dailey, deputy general counsel of Verizon, with his VP Steven Marks also holding the post of general counsel to the Recording Ass. of America. The CCI is run with the help of board members from the MPAA, Comcast, Viacom and AT&T.

The CCI hasn't responded to El Reg requests for information about how its system will work, but the Internet Society organized a debate on the topic earlier this month in which some members participated. From that, inquires in the industry, and leaked documents on one ISP's plans, here's how it will work in practice.

The system ISPs subscribe to uses a six strikes policy of piracy warnings, but it's up to each provider how they handle them. The first couple of notifications sent out via the CCI and will warn customers that an allegation of piracy has been made and that they should be aware of this. The hope is that someone's precious little snowflake will get a talking to once parents get an email from their ISP.

At the third or fourth notification to ISPs using the CCI system customers will be asked to acknowledge the receipt of the warnings (which will help in any subsequent legal case), but after that things get more serious. Verizon favors throttling bandwidth temporarily for the fifth or sixth offence, while Time Warner and AT&T will introduce an education page on copyright ownership before taking further measures.

All parties freely acknowledge that this system will only catch the unskilled pirate. Users of TOR and VPN services may well escape detection and streaming services don’t seem to be picked up by the system. But the CCI representatives say they hope it'll put a dent in the culture of piracy that has become so accepted in some circles.

No-one's expressly ruled in cutting off internet access, but no-one's ruling it out altogether either. Legal action against persistent offenders is also an option, but there will be a right of appeal for piracy alerts. What does seem clear is that the media industry is looking to move away from a legislative approach against individual offenders towards working with the ISPs to deal with the problem at source.

Community of interests

Anti-piracy efforts to date have seen the RIAA and MPAA identifying pirates and suing them in court. While this has brought in record monetary judgments the rights holders themselves aren't seeing much return on their investment since the targets have been students or single mothers with no significant assets.

Securing such judgments costs money and lawyers don’t come cheap. Groups like the RIAA and MPAA, with attendant lobbyists, are a drain on resources too and there has been precious little return on investment for the entertainment industry. Piracy levels show no sign of falling and the value of the copyright cases has spawned the $8bn iPod and considerable bad PR.

At the same time many ISPs are keen to kick large-volume downloaders off their systems, or at least encourage them to go elsewhere. A small percentage of users account for a large chunk of bandwidth for most ISPs and, while you couldn’t prove it without deep packet inspection, the likelihood is that the bulk of this traffic is pirated.

But a significant proportion of it isn’t, and therein lies the problem. There are plenty of legitimate uses for peer to peer or torrenting services. A lot of open source software gets passed around this way and ISPs have to be careful not to tread on too many toes.

The CCI solves both problems rather neatly. ISPs can join with the copyright owners to discourage the casual pirate and free up network bandwidth. The RIAA and MPAA get to spread their costs with ISPs and cut piracy, but without the legal costs of fighting cases themselves with only the prospect of winning an IOU award from a bankrupt.

Winning the crowd

So far it's only the big providers that have signed up to the CCI system, but if it shows signs of success other ISPs might join up. The big five control an awful lot of US users, but there are still plenty of local ISPs who don’t seem to be part of the new system.

Dane Jasper, CEO of West Coast ISP Sonic.net told The Register that he hadn't been approached by the CCI about joining the scheme. Furthermore he would have severe reservations about the system as it stands. While he's not looking for pirate customers there is a more important principle at stake he explained.

"An IP address is not an individual," he said. "In order to engage due process you need to identify who the offender is. Demonstrably these content providers don't appear interested in finding that out, just who has the Visa or MasterCard capable of settling this online and being done with it."

How many smaller ISPs will sign up to the system remains to be seen. If the CCI system proves to be successful in its aims then other ISPs might join. On the other hand the move could lead to a lot of people switching their providers to those that don’t follow the CCI system.

Creeping legality

If the CCI is successful it will deter a lot of casual piracy. The people that make illicit money in the trade won’t be harmed, since they only need a single good copy to burn onto DVDs that are sold in bars and markets around the world. Tech-savvy pirates will still be able to evade detection, for the moment at least.

But it will hit the casual pirate who decides to download a Justin Bieber album rather than paying iTunes or going to one of the shrinking numbers of actual music stores (where they run the terrible risk of finding some good music). And it's that revenue that the media industry wants back.

Ever since the invention of peer to peer networking the media industry has been struggling to play catch-up with piracy. It chose the legal route to crush Napster, Limewire et al, and gained nothing in the process other than a fat legal bill. Now it's going after the problem at source, and the coming campaign is going to be very interesting.

Don’t expect this to happen quickly – all parties are going to be careful to tread carefully. But this time next year the downloading situation could look very different for vast numbers of Americans. ®