Tech Law Journal Daily E-Mail Alert
December 18, 2008, Alert No. 1,876.
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RIAA to Phase Out Litigation Against P2P Infringers

12/19. The Recording Industry Association of America (RIAA) announced that it plans to wind down its efforts enforce copyrights via litigation against individual peer to peer (P2P) infringers. Rather, it will work with ISPs to provide warnings to, and if necessary, terminate the service of, infringers.

The RIAA stated in an e-mail to TLJ that "In light of new opportunities for deterrence of copyright infringement, the music industry has discontinued its broad-based litigation program against users. This step has been made possible in large part by efforts of the Attorney General of New York and leading Internet Service Providers (ISPs) on a series of voluntary online anti-piracy initiatives."

The Attorney General of New York is Andrew Cuomo.

Neither the RIAA, its member records companies, New York, nor ISPs have released the text of any agreements.

The RIAA added in this e-mail that "The end of the litigation program is also made possible through the dramatic changes in the music marketplace over the past five years. Today, there is legal clarity about what you can and can't do on peer to peer, which has contributed to a vibrant and rapidly growing digital marketplace. Cases that are currently pending will be dealt with in the ordinary course and we will continue to vigorously enforce our rights against illegal services that facilitate and engage in theft."

RIAA and record company representatives, as well as representatives of musicians, songwriters, and others in the music industry, have testified in numerous Congressional hearings, and other fora, over many years, that unauthorized P2P distribution of copyrighted works has had a devastating impact upon the music industry.

The RIAA announced in 2003 that it would begin filing copyright infringement actions against individual P2P infringers. See, story titled "RIAA Announces Plans to Sue Individual P2P Infringers" in TLJ Daily E-Mail Alert No. 688, June 26, 2003.

The RIAA member companies have since filed complaints against about 35,000 persons.

The RIAA sparred with ISPs over what procedure record companies could use to acquire information from ISPs about their infringing customers. The RIAA initially sought to use the subpoena power set forth in 17 U.S.C. § 512(h) to obtain subscriber information from ISPs. However, ISPs successfully resisted.

The courts ultimately held that a § 512(h) subpoena may only be issued to an ISP that is engaged in storing on its servers material that is infringing or the subject of infringing activity. In P2P systems the infringing copies reside on the computers of the customers. See, story titled "DC Circuit Reverses in RIAA v. Verizon" in TLJ Daily E-Mail Alert No. 804, December 22, 2003.

The RIAA then resorted to the alternative, but more costly, litigation strategy of filing John Doe lawsuits against unnamed infringers, and then obtaining subpoenas in those actions directed to ISPs. See, story titled "RIAA Shifts to John Doe Lawsuits Against P2P Infringers" in TLJ Daily E-Mail Alert No. 821, January 22, 2004.

Going forward, record companies and certain ISPs anticipate a new system for dealing with infringement by these ISPs' customers that includes sequence of graduated responses to P2P infringement. These ISPs would notify the relevant customers of notices of infringement sent to the ISPs by the record companies. Following a series of notices, and escalating sanctions, the ISPs might ultimately terminate service to the infringing customers.

Record companies have increasingly developed overlapping interests in this area. The major commercial broadband internet access service providers are also increasingly providers of copyrighted content who have a interest in protecting their copyrights. These broadband providers also have network congestion problems resulting from use of bandwidth intensive P2P applications, much of the traffic of which is transfers of infringing files.

Universities and their broadband networks are another matter.

The RIAA email to TLJ does not state that the RIAA or its member companies will cease bringing actions alleging copyright infringement, or vicarious or contributory infringement, against the businesses that provide services the facilitate infringement by their users.

See, for example, the case MGM v. Grokster, and stories titled "Supreme Court Rules in MGM v. Grokster" and "Reaction to the Supreme Court's Opinion in MGM v. Grokster" in TLJ Daily E-Mail Alert No. 1,163, June 28, 2005.

Reaction. Gigi Sohn, head of the Public Knowledge, stated in a release that "We are pleased that the RIAA has decided largely to drop its counter-productive strategy of suing its customers. We also have no objections to RIAA working closely with Internet Service Providers (ISPs) to pass along notices to those suspected of file-sharing, although ISPs should not be put into the improper role of `copyright cop.´"

However, Sohn added that "we want to make certain that customers are not cut off from their Internet service or have their service altered solely on the basis of a claim by a copyright holder that file sharing is taking place. Consumer rights must be protected as part of any process that involves action by an ISP to cut off or degrade service of a customer. In addition, we want to make clear that any arrangements between RIAA and the ISPs should not involve the invasion of customer privacy through the filtering of Internet content."

"The public deserves to know more about these processes before they are put into place", said Sohn.

Fred von Lohmann, of the Electronic Frontier Foundation (EFF), a group that is hostile to copyright, wrote in a release that "Ending the lawsuit campaign is long overdue. The campaign has been, by any measure, a failure."

"But the news today is not all good. First, the recording industry will continue to press the thousands of pending lawsuits", wrote Lohmann. "More troubling is the news that the RIAA is pressuring U.S. ISPs into adopting some sort of ``3 strikes´´ approach, similar to those it's been seeking in Europe".

He argued that "mistakes are going to be made" by ISPs. "Anyone who has ever had to fight to correct an error on their credit reports will be able to imagine the trouble we're in for."

"The problem is the lack of due process for those accused", wrote Lohmann.

More Information on § 512(h) Litigation. The main § 512(h) case was RIAA v. Verizon. See, December 19, 2003, opinion [16 pages in PDF] of the U.S. Court of Appeals (DCCir), which is also reported at 351 F.3d 1229.

See also, stories titled "RIAA Seeks to Enforce Subpoena to Identify Anonymous Infringer" in TLJ Daily E-Mail Alert No. 499, August 27, 2002; "Verizon and Privacy Groups Oppose RIAA Subpoena" in TLJ Daily E-Mail Alert No. 501, September 4, 2002; "District Court Rules DMCA Subpoenas Available for P2P Infringers" in TLJ Daily E-Mail Alert No. 588, January 22, 2003; "Law Professor Submits Apocalyptic Declaration in RIAA v. Verizon" in TLJ Daily E-Mail Alert No. 596, February 3, 2003; "DOJ Files Brief in Support of RIAA in Verizon Subpoena Matter" in TLJ Daily E-Mail Alert No. 646, April 22, 2002; "District Court Rules That A DMCA § 512(h) Subpoena for the Identity of an P2P Infringer Does not Violate the Constitution" in TLJ Daily E-Mail Alert No. 649, April 25, 2003; "Court of Appeals Denies Stay in RIAA v. Verizon" in TLJ Daily E-Mail Alert No. 674, June 5, 2003; and "Supreme Court Denies Cert in DMCA Subpoena Case" in TLJ Daily E-Mail Alert No. 995, October 13, 2004.

See also, January 4, 2005, opinion [27 pages in PDF] of the U.S. Court of Appeals (8thCir) in RIAA v. Charter Communications, and story titled "8th Circuit Holds RIAA Cannot Use 512(h) Subpoenas on ISPs for Info on P2P Infringers" in TLJ Daily E-Mail Alert No. 1,050, January 5, 2005. And see, story titled "Pacific Bell Internet Services Sues RIAA Over Infringer Subpoenas" in TLJ Daily E-Mail Alert No. 709, August 1, 2003.

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In This Issue

This issue contains the following items:
 • RIAA to Phase Out Litigation Against P2P Infringers
 • Public Knowledge Argues that Short Codes and Text Messaging are Title II Services

Public Knowledge Argues that Short Codes and Text Messaging are Title II Services

12/18. The Public Knowledge (PK) submitted another comment [11 pages in PDF] to the Federal Communications Commission (FCC) arguing that it should declare that "text messaging, including the offering of short codes to the public, is a Title II common carrier service".

The PK asserted, in this proceeding begun by the PK and others in December of 2007, that "discrimination in text messaging and short code provisioning remains a serious, ongoing problem" that must be addressed by the FCC by declaratory ruling.

The FCC has requested and received public comments, but otherwise has been sitting on this matter for over one year.

The PK argued that "wireless carriers continue to deny consumers and businesses alike the right to send and receive lawful text messages. In fact, carriers have gone so far as to make explicit their intent to ensure that the lawful speech that travels across these systems matches their ``corporate values,´´ is ``in good taste,´´ does not ``disparage´´ them or their affiliates, and is otherwise subject to their discretion."

The wireless carriers oppose the PK's request. One issue before the FCC is whether the service at issue is a Title II communications service subject to the nondiscrimination requirements of 47 U.S.C. § 202, or whether it is an information service. The PK argues for Title II classification, while wireless carriers advance the information service argument. The PK's just filed comment focuses on this issue.

(Hypothetically, the FCC could declare that this service is an information service, but assert the concept of ancillary jurisdiction to apply this one component of the Title II regulatory regime to this service.)

Another issue is the extent and nature of the blocking. Wireless carriers argue that they are blocking millions of messages -- unsolicited spam -- and that this is effective and necessary network management. The PK argues that important speech is being blocked.

Title II or Information Service? The PK's latest filing asserts that the short codes are "subject to all of the protections of Title II, including § 202's nondiscrimination protections and § 255's accessibility requirements." (Footnotes omitted.)

47 U.S.C. § 202 provides, in part, that "It shall be unlawful for any common carrier to make any unjust or unreasonable discrimination in charges, practices, classifications, regulations, facilities, or services for or in connection with like communication service, directly or indirectly, by any means or device, or to make or give any undue or unreasonable preference or advantage to any particular person, class of persons, or locality, or to subject any particular person, class of persons, or locality to any undue or unreasonable prejudice or disadvantage."

47 U.S.C. § 255 pertains to access by persons with disabilities to telecommunications equipment and telecommunications services.

The gist of the PK's key argument is that both telephone numbers and short codes are numbers, and that both are issued by carriers.

The CTIA, which represents wireless carriers and others, submitted a comment [12 pages in PDF] on August 28, 2008, in which it wrote that "Common Short Codes utilize SMS -- an information service -- to provide short addresses to business partners for the purpose of marketing a service to a carriers' customers".

It continued that "Because the underlying service (SMS) is properly classified as an information service, and CSC's are not telecommunications but simply an addressing convention, imposition of Title II non-discrimination requirements would be inappropriate."

For a more detailed statement of the CTIA's case, see its March 14, 2008, comment [61 pages in PDF].

Given the history of classification of various services, going back to the U.S. District Court's (DC) Modified Final Judgment (MFJ), the FCC's 1980 Computer II decision, and the FCC's 1998 Steven's report, the PK is advancing a tenuous argument.

Voice mail and e-mail, which share attributes of text messaging, have long been classified as information services.

Spam. The CTIA wrote in a July 18, 2008, comment [PDF] that protecting consumers from spam messages is a problem. It wrote that "individual wireless carriers block as many as 200 million text message advertisements each month, and when they can find them, wireless carriers take these spammers to court to protect their customers from unwanted and costly commercial messages." (Footnote omitted.)

It argued that "wireless carriers must retain the ability to protect their customers from fraud, spam, and objectionable material. To ensure that carriers can continue these important efforts, the Commission should reject attempts to regulate SMS and Short Code services as Title II services, subject to the Commission’s common carrier obligations."

It added in its August 28 comment that "Unlike wired services that can add capacity through greater buildout, constraints on expansion of network capacity are a reality for spectrum-based services. Because of this constraint, wireless networks must be more aggressively managed to maximize the consumer benefit from their network provider."

The PK disputes the CTIA's spam argument. The PK and others filed a comment [17 pages in PDF] and appendices [44 pages in PDF] on October 2, 2008, arguing that the relief that it requests will not impact wireless spam. See, story titled "Public Knowledge and Wireless Carriers Dispute Threat of Text Messaging Spam" in TLJ Daily E-Mail Alert No. 1,837, October 2, 2008.

Background. The PK and others submitted the Petition for Declaratory Ruling [33 pages in PDF] on December 11, 2007, that led the FCC to originate this proceeding. See, story titled "Public Knowledge Asks FCC to Declare that Blocking and Refusing to Carry Text Messages Violates Title II" in TLJ Daily E-Mail Alert No. 1,686, December 11, 2007.

The PK's original petition cited Verizon Wireless's brief blocking of National Abortion Rights Action League (NARAL) messages. See, story titled "Verizon Wireless and Net Neutrality Advocates Clash Over Text Messaging" in TLJ Daily E-Mail Alert No. 1,647, September 27, 2007. See also, letter from Verizon Wireless to NARAL dated September 27, 2007, and NARAL's web page titled "NARAL Pro-Choice America Wins Fight over Corporate Censorship".

See also, story titled "Martin Discusses Complaints Against Comcast and Verizon Wireless" in TLJ Daily E-Mail Alert No. 1,728, March 10, 2008.

This proceeding is numbered WC Docket No. 08-7.

Washington Tech Calendar
New items are highlighted in red.
Friday, December 19

The House will not meet.

The Senate will meet in pro forma session.

Deadline to submit comments to the National Institute of Standards and Technology's (NIST) Computer Security Division (CSD) regarding draft SP 800-102 [30 pages in PDF] titled "Recommendation for Digital Signature Timeliness".

Extended deadline to submit nominations to the Federal Communications Commission's (FCC) Wireline Competition Bureau (WCB) for six different positions on the Board of Directors of the Universal Service Administrative Company (USAC). See, original FCC notice [PDF] and FCC notice of extension. These items are DA 08-2487 and DA 08-2651 in CC Docket Nos. 96-45 and 97-21.

Sunday, December 21

Hanukhah begins at sundown.

Monday, December 22

Deadline to submit comments to the U.S. Patent and Trademark Office (USPTO) in response to its request for comments regarding information collection associated with its use of Public Key Infrastructure (PKI) technology to protect the integrity and confidentiality of information submitted to the USPTO. See, notice in the Federal Register, October 23, 2008, Vol. 73, No. 206, at Pages 63134-63135.

EXTENDED TO FEBRUARY 20, 2009. Deadline to submit reply comments to the Federal Communications Commission (FCC) regarding the Rural Cellular Association's (RCA) May 20, 2008, petition for rulemaking [25 pages in PDF] regarding "the widespread use and anticompetitive effects of exclusivity arrangements between commercial wireless carriers and handset manufacturers" and "rules that prohibit such arrangements". See, notice in the Federal Register, October 23, 2008, Vol. 73, No. 206, at Pages 63127-63128. This proceeding is RM No. 11497. See, FCC notice of extension [PDF], and notice of extension in the Federal Register, December 12, 2008, Vol. 73, No. 240, at Pages 75629-75630.

Deadline to submit reply comments to the Federal Communications Commission (FCC) regarding the Rural Telecommunications Group's (RTG) July 16, 2008, petition for rulemaking [22 pages in PDF] regarding imposing a spectrum cap for commercial terrestrial spectrum. The RTG requests that the FCC write rules that provide that no licensee of commercial terrestrial wireless spectrum below 2.3 GHz, including all parties under common control, should be permitted to have an attributable interest in more than 110 megahertz of licensed spectrum with any significant overlap in any county. See, notice in the Federal Register, October 23, 2008, Vol. 73, No. 206, at Pages 63128-63129. This proceeding is RM No. 11498.

Tuesday, December 23
No events.
Wednesday, December 24
No events.
Thursday, December 25

Christmas. See, Office of Personnel Management's (OPM) list of 2008 federal holidays.

Friday, December 26

Deadline to submit to the Federal Communications Commission (FCC) replies to oppositions to the petition for reconsideration [PDF] filed on November 17, 2008, by the National Association of Broadcasters (NAB) and the Association for Maximum Service Television in the FCC's proceeding titled "In the Matter of Carriage of Digital Television Broadcast Signals: Amendment to Part 76 of the Commission's Rules" and numbered CS Docket No. 98-120. See, notice in the Federal Register, December 2, 2008, Vol. 73, No. 232, at Page 73327.