Music Industry to Challenge ISP Common Carrier Status

One of the basics of law, in the US at least, is that ISPs are viewed as common carriers, which means that, much like phone companies, they are not responsible for activity that takes place on their networks.

Much like the phone company is not responsible for people who, for example, plan a bank robbery over their network, so the ISPs are not responsible if these same people were to do so using email or VOIP.

Well, the good folks at the RIAA^* have come up with a way to put an end to this legal arrangement, which has served telecommunications for over 100 years now.

Basically, they have decided to abandon their strategy of suing grandmothers for multimillion dollar lawsuits based on dubious data, and instead, they are asking ISPs to take responsibility for the actions that people take through their networks, and threaten them and disconnect them, based on the same bogus data.:

Instead, the Recording Industry Association of America said it plans to try an approach that relies on the cooperation of Internet-service providers. The trade group said it has hashed out preliminary agreements with major ISPs under which it will send an email to the provider when it finds a provider’s customers making music available online for others to take.

Depending on the agreement, the ISP will either forward the note to customers, or alert customers that they appear to be uploading music illegally, and ask them to stop. If the customers continue the file-sharing, they will get one or two more emails, perhaps accompanied by slower service from the provider. Finally, the ISP may cut off their access altogether.

So, they are getting ISPs to agree to take legal responsibility for this, and exposing these same ISPs to legal jeopardy from their customers when they get this wrong.

This is, as Matthew Yglesias frequently notes, a consequence of a lack of understanding of what IP in general, and copyright in particular are actually about.

The purpose of IP is not about the creation of property, nor the guarantee of profits, its purpose is one of public interest. To quote the pertinent section of the US Constitution:

To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.

(emphasis mine)

Or, as Yglesias puts it:

But boosting album sales is not a legitimate public policy objective. Nor is boosting record company profits. Nor, even tough musicians themselves are a much more sympathetic claimant than record company shareholders, is boosting musician incomes. The purpose of intellectual property law is to protect the interests of consumers. I’ve never seen anybody attempt to argue that people aren’t forming new bands or recording new songs anymore. Nor have I seen anybody attempt to argue that it’s more difficult today to find new music to listen to than it was ten or twenty years ago. In fact, the reverse is the case. The very trends toward digitization and file-copying have made music much more widely available than it was in the past.

Of course, the folks always trot out this graph showing declining album sales, but, as the other Matthew notes, selling albums is not the business of the US government.

Additionally, this is not a graph of album sales, but a graph of album shipments, and the record companies have improved inventory system over the past decade, using software to predict sales, so they ship fewer albums to stores, and get fewer returns.

As if we did not already know that they were lying sacks of sh%$, they are attempting to use new efficiencies in distribution to create the illusion that "pirates" are "destroying their industry".

^*And by, "good folks at the RIAA," I mean, "bunch of mindless jerks who'll be the first against the wall when the revolution comes."