Register Log in


RIAA graduated response plan: Q&A with Cary Sherman

Ars talks to RIAA President Cary Sherman about the music industry's new …

RIAA president Cary Sherman

On Friday, major news broke: the RIAA would (largely) abandon its widespread lawsuit campaign against individuals in favor of a "graduated response" partnership with ISPs. The outlines are clear enough—the RIAA will identify infringers, pass that information on to ISPs, who will notify (and eventually sanction) users without turning personal information over to the music industry.

But details, in some cases hugely important details, remained unclear. Chief among these was the lack of any talk about an oversight or appeals process for users who want to contest the RIAA's claims in some way. We checked in with EFF attorney Fred von Lohmann, one of the leading non-industry voices on these issues; he suggested five potential "gotchas" that need to be scrutinized as the plan goes forward:

  • What's the mechanism for "appealing" a false allegation? How will subscribers be notified (i.e., what if your "third notice" ends up caught in your spam folder, or your teenager intercepts the letters)? Will parents be held responsible for what their children are doing? Will neighbors be held responsible if they run open WiFi?
  • Does this mean ISPs now have an obligation to engage in enough data retention to reconstruct the activities of subscribers? If so, this will create a cache of data that will imperil our privacy in other ways, as the government and private litigants start demanding access to it.
  • What happens after the "third strike"? Will there be an "Internet blacklist" of persons that ISPs cannot service? What about those who have only one residential broadband provider in their area? The increasing provision of government services online (taxes, FEMA insurance, etc.) makes the threat of being taken offline a very serious matter.
  • What does "throttling" mean in this context? Will it mean banning particular protocols (like BitTorrent or gnutella), banning particular ports, or pervasive deep packet inspection? Will subscribers get a discount if their "7Mb" Internet service becomes "256k" Internet service?
  • Will this require ISPs to affirmatively monitor for infringement ("filtering"), or will they only respond to RIAA complaints?

To get more details about the program, Ars turned to Cary Sherman, president of the RIAA; you can read the complete transcript of our talk below. Sherman's answer to the first question is, in essence, "it's all being worked out," but he's fully aware that an appeals process of some kind must be in place before the program goes live.

When it comes to question four, Sherman noted after our interview wrapped up that the RIAA had no idea who had suggested "throttling" as a possible sanction against users. While it did appear in the initial Wall Street Journal article, the RIAA is not advocating bandwidth throttling as a possible sanction at this time, and Sherman isn't sure of anyone who is.

As for question five, potential infringers will be identified using the same basic process that the RIAA has used to identify file-swappers for its court cases and settlement letters; ISPs appear not to be involved in the identification process, only in the resulting notification and sanction process.

For the other questions, definite answers are harder to come by. Much of the agreement is still being hashed out, including practical implementation details that may be pesky, but are crucial.

Despite the RIAA's unwillingness to identify the ISPs that are currently involved in the program, Ars has confirmed that Verizon is not participating at the moment. Requests for comment to AT&T and Comcast were not returned.

Interview with Cary Sherman

Did New York Attorney General Andrew Cuomo's office prompt this new approach, or has RIAA been working on graduated response for some time?

The latter.

How long has the RIAA been pursuing graduated response in the US?

Well, this is an idea that has been circulating not just within the United States but all around the world for a long time. I think it's fair to say that we've been actively engaged in discussions for about a year, but those discussions have picked up their pace since the spring and summer.

Was there any consultation with European labels, ISPs, and governments about setting this up and learning form their approach?

We have been following developments there to get an understanding of the issues and the positions and concerns of the respective parties so that we can anticipate what issues might arise, but we haven't specifically consulted with governments. We have gotten briefings from the record industry negotiators in the UK and France, for example, just to get status reports and ask them questions and learn what the concerns were and how they were addressing them. It was useful background.

When will the system actually be in place and start working? Has that been determined yet?

It has not.

Can you say anything about what ISPs are involved?


Are colleges and universities involved?

Colleges and universities have really been engaged in their own form of graduated response for many years. If you take a look at what universities have been doing, they have escalating sanctions for people who have been identified as repeat infringers. Something as simple as, for example, at Stanford, where they charge a $100 reconnection fee for somebody who fails to respond to a first notice. Then a second offense is $500 and a third [time] offender has network privileges terminated and to regain access, they have to pay a $1,000 fee. That's a very clear graduated response system.

Others will just give a warning the first time, and the second time they might do a temporary disconnect for 24 hours, and a third time they might refer you to the judicial affairs system. Every school has its own variation, but they've really been implementing informal graduated response.

Can you explain a bit more about how the identification and notification will work? Is this essentially the system you used for the lawsuit campaign, only now directed at slightly different ends?

Yeah, the technology for identifying infringement is essentially the same. I think it's fair to say that all the parties would want comfort that the technology is accurate and reliable, because nobody is interested in false positives. And we'll also need a mechanism so that somebody who claims that he or she was improperly identified would have an opportunity to be heard and have the question resolved. All of those things need to be worked out.

We're comforted by the fact that the technology that we used was actually examined by a group of engineers at the University of Washington, and they concluded that our technology was the best out there in terms of this approach. None of the false positives they found came from us, at all, and we got high marks from them. So we feel very comfortable that the technology is very accurate and very reliable, but we're also happy to have it examined to ensure that that's the case.

Can other industries, such as the film business, get in on the same arrangement with ISPs?

Our negotiations have been just with us, but there's no reason to think that ISPs aren't talking with all sorts of copyright owners. I think ISPs would understand that any system that they set up to protect one form of content should appropriately be available for other forms of content because it's hard to justify why some would be protected and others not.

How will you deal with ISPs that choose not to cooperate? Will they be notified about subscribers who share files? Will you proceed with lawsuits?

That's an issue we hope not to have to address. There's been, as you pointed out earlier, a real movement toward ISPs assuming a more proactive role in dealing with online piracy in constructive way that's sensitive to their subscribers, that's sensitive to privacy, that's sensitive to content, and that is frankly responsive to their needs in terms of network congestion and offering good consumer experiences to all their subscribers. I mean, there are a lot of considerations here.

But, for one reason or another, this has been something that has been talked about all over the world: New Zealand, Korea, France, the UK, Japan, Australia. There are a lot of countries that are encouraging their ISP and content communities to be having discussions. Very often in Europe, it's more of a regulatory regime, and they think of things more in terms of legislation. This is entirely voluntary and I think it's made possible because the business interests of the industries are converging.

There was a time five years ago when ISPs were solely focused on increasing their broadband penetration, and cutting back on piracy was not part of their business interest. Five years later, they're in a very different place. They want to be portals in their own right, they want to offer their subscribers great content; it's something that distinguishes one from another. They're looking at themselves as more than the dumb pipes that they were five years ago, and I think that opens up partnerships that didn't exist before.

As you said, governments have been pushing this in many places. Do you believe this entire process can remain voluntary in the US, or will you seek government backing for the scheme, as in Europe?

We have not sought government backing. The involvement of Attorney General Cuomo, for example, is really voluntary, using his good offices to address an issue he feels strongly about. New York state is enormously impacted economically by the piracy that the music industry faces, and he's already done things [with ISPs] on child pornography, obviously, and he wants to try to find constructive solutions for this problem. This has not been a government play, this is really voluntary with help and influence from intermediaries.

You said a moment ago that ISPs were interested in being portals, offering content, possibly providing blanket music licenses to subscribers. Are any special content deals part of these graduated response talks?

They are not, because those kinds of deals would have to be negotiated individually with our member companies. We cannot get involved in that.

Finally, current cases; if the original verdict in the Jammie Thomas case is not reinstated, will you proceed with a new trial?

We're going to see what happens when the court rules on the appeal, and then decide what the next step as we do in the ordinary course of any other case.

Expand full story

You must to comment.

Need to register for a new account?

If you don't have an account yet it's free and easy.