Mixed feelings on ISP’s new anti-piracy agreement

Pirate skullAs a writer and bookseller, I depend on copyrights and their enforcement to make a living. I believe that people should be able to profit from their creative labors, and that a properly-constructed copyright system encourages people to create. I also believe that our current system isn’t properly-constructed, but that’s another topic entirely.

Last Wednesday, July 6, a group of major Internet Service Providers (ISPs) entered a voluntary agreement with the music and movie industries (MPAA and RIAA) to enforce copyrights on their customers’ websites. When someone (most likely the RIAA or MPAA) notifies your ISP of a potential copyright violation on your website or through P2P usage, you will receive a warning. The first four warnings are “educational” in nature, with no penalty and no appeal. As you move up to the fifth and sixth warning, the “mitigation” stage kicks in, and you could find your access speed throttled back or a landing page that comes up every time you try to access the Internet.

This bothers me on several levels. Even though the ISPs won’t be monitoring your Internet traffic, and disconnection isn’t one of the possible punishments, it puts Big Daddy right in your office or living room. And the penalty phase seems misguided to me. Once you’ve reached the fifth or sixth warning, and the ISP has applied a penalty, you have the option to appeal. Unfortunately, you have to pay for the appeal ($35.00), and your reasons for appeal are highly limited.

The memorandum of understanding lists six possible grounds for appeal (the misnumbering is theirs, not mine):

(i) Misidentification of Account–that the ISP account has been incorrectly identified as one through which acts of alleged copyright infringement have occurred.
(ii) Unauthorized Use of Account–that the alleged activity was the result of the unauthorized use of the Subscriber’s account of which the Subscriber was unaware and that the Subscriber could not reasonably have prevented.
(iii) Authorization–that the use of the work made by the Subscriber was authorized by its Copyright Owner.
(iv) Fair Use–that the Subscriber’s reproducing the copyrighted work(s) and distributing it/them over a P2P network is defensible as a fair use.
(vi) Misidentification of File–that the file in question does not consist primarily of the alleged copyrighted work at issue.
(vii) Work Published Before 1923–that the alleged copyrighted work was published prior to 1923.

Does anyone else notice a glaring omission on that list? If someone reports you for copyright infringement, you can’t say “Piss off; I own that!” I suppose you could go for clause iii and say that you had given yourself permission, but remember you can’t appeal the first four warnings at all, and if someone reports you for placing your own copyrighted content on your website or blog, it will cost you $35 and some unknown amount of time to make the penalties go away.

I am interested in how this will affect writers. I have found copies of my work scattered all over the Internet, and found that most website operators ignore my requests to take it down. Although the RIAA and MPAA started the process that led to this memorandum of understanding (MOI), it opens with the following words:

Copyright infringement (under Title 17 of the United States Code) on the Internet (“Online Infringement”) — including the illegal distribution of copyrighted works such as music, movies, computer software, gaming software, e-books and the like via Peer-to-Peer (“P2P”) file exchanges and other illegal distribution via Internet file hosting, streaming or other technologies — imposes substantial costs on copyright holders and the economy each year.

Notice the inclusion of ebooks? This seems to imply that writers can contact an ISP and report violations under the terms of the MOI. Would this also include our articles, stories, poems, and audio books? How about digital copies of artists’ work? Well, apparently not. According to the MOI, notices of infringement may only be given by the “Content Owner Representatives,” which they define as the RIAA and MPAA. If your content is pirated, you can’t do a thing about it unless the RIAA or MPAA choose to respond.

If, however, those organizations do choose to pass through notices generated by individuals, it would create a whole new form of harassment. If you don’t like someone, report them for copyright infringement over and over and over. Even if they’ve done nothing wrong, it will cost them $35 each time to remove the mitigation measures.

This could be a very far-ranging contract, and there could be consequences unforeseen by the signers of the MOI.

Incidentally, the ISPs that signed the agreement — as listed in Attachment A of the MOI — are SBC Internet Services, Inc., BellSouth Telecommunications, Inc., Southwestern Bell Telephone Company, Pacific Bell Telephone Company, Illinois Bell Telephone Company, Indiana Bell Telephone Company, Incorporated, Michigan Bell Telephone Company, Nevada Bell Telephone Company, The Ohio Bell Telephone Company, Wisconsin Bell, Inc., The Southern New England Telephone Company, and BellSouth Telecommunications, Inc. (the AT&T Inc. companies); Verizon Online LLC, VerizonOnline LLC –Maryland, and Verizon Online Pennsylvania Partnership (the Verizoncompanies); Comcast Cable Communications Management, LLC; CSC Holdings, LLC (solely with respect to its cable systems operating in New York, New Jersey, and Connecticut)(the Cablevision systems); and Time Warner Cable Inc.


  1. Interesting situation you are in, Gary. As a producer of materials you’d like to see protected, you object to the form of enforcement pursued presumably on your behalf. While no enforcement at all would eliminate the opportunity for people who don’t like you to harrass you, that would turn a blind eye on illegal distribution of materials for which you own the rights. You seem to have made a case both for and against hightened penalties against copyright abusers. I suppose a person’s intent will identify their posiiton on this issue — people desiring to steal the work of other writers will object to this crackdown. Those whose primary interest is protecting what they’ve created will approve. So what is the answer?

    1. I still have more questions than answers, Don. Complete lack of enforcement will drive many of the most creative minds out of the business. It will lower the overall quality of materials available to us as consumers by removing the budget for editors, indexers, fact-checkers, proofreaders, copyeditors, cover designers, and all of the other people who make the writing business tick behind the scenes. Amateur writers rule the day the the pros take jobs creating marketing materials and writing white papers for corporate America. The same argument applies to musicians, songwriters, artists, and other creative people.

      On the flip side, coming down too hard or — like this agreement — too inconsistently on the wrong people pisses off the very people we depend upon to buy our books (or music, or art…) and drives them away. I wish I had the answer.

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