All of us, every one of us, is a copyright owner. Every time we take a picture, write a letter or doodle a drawing, we are creating a copyrighted work. Copyright law gives us the right to use the courts, through civil law, to enforce our rights.* If we didn’t have this tool at our disposal, we would essentially have no protection of our rights, because it would be rare indeed that the individual acts of infringement would rise to a level that would attract criminal enforcement.

We must remember this as we read the news in today’s Wall Street Journal that the recording industry is choosing to go another direction in its enforcement of its copyrights and the rights of its performing artists by not filing more civil suits but instead partnering with willing Internet service providers. The suits, which I have defended, have served a useful purpose. They have done wonders to educate everyday Americans that unauthorized downloading — and specifically uploading, the only types of suits filed — of recorded music is wrong, and is illegal, and can cost you a lot of money. To RIAA’s credit, it always settled for far less than the infringer’s potential damages were under civil copyright law.

This is a win-win-win for copyright owners, ISPs and consumers. Copyright owners will finally have the cooperation of the operators of the very conduits infringers use to share files. ISPs will have an opportunity to significantly reduce infringing traffic on their networks, reducing the pressure to perform other network management steps, while helping their customers comply with the law. Law-abiding consumers will have faster broadband speeds as networks become less clogged, and eventually even more legal offerings as infringers are quarantined with a few rogue ISPs willing to harbor lawbreakers.

This copyright owner-ISP cooperation is already underway in the U.K., where the six largest ISPs reached a memorandum of understanding with the recording and motion picture industries. This is in contrast to efforts in France and the European Union some desire here and abroad to potentially force ISPs to be responsible for enforcement.

While it is tempting as an ardent supporter of creators’ rights to say ISPs should have a legal obligation to police their networks for criminal activity, as a believer in free markets I have to say that the voluntary cooperation model is quite appealing and must be given a chance to work.

Both copyright owners and ISPs have a common interest in seeing infringement significantly reduced. There is no upside to having a single customer hogging bandwidth to perform illegal activities. That is not a customer you want to hang on to. But under the cooperative model outlined in the Journal article, that individual would have to receive several warning notices before service was slowed or cut off.

Privacy advocates should note that the copyright owners will not know the identities of the infringers under this model. The ISPs, who already know their own customers, would be the ones in communication with the alleged infringers. They have the ability to confirm the suspicions of the copyright owners, and they have the ability to persuade the infringers to begin complying with the law, before they see themselves cut off. Let us hope most comply with the law. That has certainly been the case in studies examining warnings given on college campuses.

Privacy was the critical issue in RIAA v. Verizon, when Verizon resisted aggressively attempts by copyright owners to obtain identifying information on infringers they were identifying through IP addresses. With the ISPs ultimately prevailing in that suit, copyright owners have had to go through a multiple-step “John and Jane Doe” process that has produced unnecessary costs, paperwork and court time. Far more efficient to see ISPs cooperate while preserving customer privacy.

If only ISPs had been willing to sit down with copyright owners and cooperate five years ago, we might have avoided all of these suits that have generated so much controversy.

Opponents of creators’ rights will be crowing this morning that they have defeated evil corporations seeking to quash digital freedom. Yeah, um, good luck with that.

The Copyright Alliance says it is copyright owners who have succeeded here. They have made clear to all the illegal nature of unauthorized file-sharing. They have finally begun to persuade ISPs that they have a mutual interest in reducing infringement. And they are positioned to offer consumers a wider variety and assortment of legal services than ever before imagined.

Thank you to the RIAA and its members for being willing to take the heat for so long on civil enforcement, and thank you for showing other copyright owners a path to reconciliation with ISPs.

*As we point out on our web site in a copyright how-to document and in videos, if a creator wants to be able to pursue statutory damages — recover harm beyond the strict damage done — they need to register their work with the U.S. Copyright Office.

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This entry was posted on Friday, December 19th, 2008 at 10:30 am by Patrick Ross and is filed under copyright law, copyright opponents, creators, education, market forces, piracy, property rights. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.