Wednesday, February 13, 2008

Using ISPs to Control File Sharing

Digital Music News reports today that the major labels might be gaining some traction in their bid to require internet service providers to play a role in stemming file sharing:
According to information surfacing Tuesday, British legislators are now proposing measures that would force ISPs to monitor their traffic, and restrict access for repeat offenders. An early-stage consultation paper outlines a three-strikes policy, though details are still being developed.
Once again, the majors and their legislative counterparts are taking the wrong-headed approach. Rather than focusing on the source, and perhaps finding new and creative ways to stop major sources of file sharing, they are going after the users employing the services. True, if some joe in Thailand is making tens of thousands of songs readily available to millions of people, they might want to shut that "user" down. However, it's really the commercial enterprises that enable the joe who should be pursued.

The problem with using ISPs as deputies in the file sharing battle is that they will necessarily monitor the traffic of all users to find the bad guys. This is akin to the U.S. government tapping AT&T to monitor all telephone calls and internet traffic to track terrorists - making everyone a suspect for the sake of catching a handful of evil-doers.

This approach also will presumably require some investigation into the files actually being transferred, since countless people will be moving large files for legitimate purposes. In my legal practice, for instance, we routinely accept and transmit legitimate copies of music files, trademark specimens, copyright deposit material, etc., and all of this could be viewed as suspect without context (even if they new the file types, we might still draw a red flag).

For a file sharing enterprise to be successful, people must know about it. If people know about it, law enforcement should not have a problem investigating it and gathering evidence specific to that enterprise sufficient to bring criminal charges in whatever jurisdiction necessary. Enlisting the help of ISPs is a simpleton approach and fraught with far more problems than solutions.