As ISPs Prepare to Police Web Piracy, Questions of Efficacy and Motive Remain

Jedidiah Becker for

Depending on whether or not you use peer-to-peer networks for file sharing, you may or may not remember a brief battery of blogosphere fireworks last summer after a handful of major internet service providers (ISPs) announced that they had reached an agreement with the Motion Picture Association of America (MPAA) and the Recording Industry Association of America (RIAA).

According to that deal – euphemistically dubbed the “Memorandum of Understanding” (MU) – the US’s largest ISPs, including Comcast, Cablevision, Verizon and Time Warner Cable agreed to help the entertainment industry crack down on Web users who downloaded copyrighted material via peer-to-peer networks, the most common of which for the past several years has been BitTorrent.

Thus, already the gatekeepers to the World Wide Web, ISPs would now also serve as the Praetorian Guard to that motley conglomerate of record labels and film factories on which we’ll bestow the simple sobriquet “Big Entertainment.”

If you don’t remember any of this happening, don’t worry – you’re not the only one. For obvious reasons, ISPs were eager to elude the initial flare up of media attention that surrounded the deal, and within a month the issue had all but slipped down the memory hole à la collective public amnesia.

Moreover, while the ISPs initially announced that they would try to have formal piracy-policing mechanisms in place by the end of the year, 2011 came and went, and the cyber scaramouches continued to upload and download pirated media, thumbing their noses at the likes of Disney and Columbia Records.

Neither Big Entertainment nor ISPs have forgotten the Memorandum of Understanding, however, and this week a group of American media publishers met in New York to discuss a timeline for implementing its measures.

According to tech news site CNET which broke the news of the deal last summer, RIAA CEO Cary Sherman says that the majority of participating ISPs should be ready to launch the program by July 1 of this year. Sherman also explained that the logistics of implementing the program required a lot of technical preparation on the part of the ISPS; hence the nearly half-year delay.

“Each ISP has to develop their infrastructure for automating the system,” Sherman said. This, he explained, is necessary “for establishing the database so they can keep track of repeat infringers, so they know that this is the first notice or the third notice. Every ISP has to do it differently depending on the architecture of its particular network. Some are nearing completion and others are a little further from completion.”


“Repeat infringers?” “First notice or third notice?” So what exactly does the ISP-entertainment cabal have in store for hardened, repeat transgressors of copyright law?

The pact will allow the owners of copyrighted media – say, Sony, 20th Century Fox or Universal – to eavesdrop on digital exchanges taking place over peer-to-peer networks. When the content owners detect the illicit sharing of copyrighted media, they then turn over the user’s IP number to the internet service providers who are then expected to initiate a “graduate response” procedure.

(Note: Don’t forget, if a subscriber has a router used by numerous devices, the ISP will only have the IP address of the router associated with the specific subscriber´s account, not the various devices that use it.)

This “graduated response” consists of a series of escalating notices aimed at deterring the subscriber´s piratic activity.

The first notices, called the ‘Initial Educational Steps,’ will simply inform the offending Internet subscribers that they are in violation of both their ISP´s terms of service agreement as well as federal copyright law. The customer may be sent more than one such educational notice and will also be informed that failure to desist will result in more severe measures.

The educational step is followed by the so-called ‘Acknowledgement Step,’ whereby users who continue to exchange copyrighted media are sent a letter requesting that they formally acknowledge that they are infringing on copyright laws as well as pledge to end the illicit activity.

If both the educational and acknowledgement notices fail to deter the offending account holder’s activity, ISPs are then supposed to send out a Mitigation Measure Copyright Alert, informing the subscriber that his or her account is now subject to Mitigation Measures (i.e. punishment). As in the previous step, this also requires the subscriber’s formal acknowledgement.

Like cyber-Torquemadas, the participating ISPs then have an arsenal of deterrents at their disposal, each intended to inflict various degrees of discomfort on their contumacious customers and thus inspire their contrition (or at least extreme annoyance). For instance, the ISP might repeatedly reroute the offending subscriber to educational pages that inform him about the evils of IP-apostasy.

But the ISPs also have the option of adopting more severe measures. Alternatively, they can opt to strangulate the user’s connection, bringing their browsing speed to a crawl and plunging them back into the Internet Stone Ages – you remember, when the simple task of checking emails or downloading a single picture provided you with enough idle time to grab a cup of coffee and thumb through Columbia’s music-club catalogue.

According to the 36-page Memorandum of Understanding, the ISP can even opt to simply suspend the subscriber’s account. Not surprisingly, however, none of the participating ISPs have agreed to implement this measure.


With the program set for a July 1 roll out, there remain a number of questions surrounding the collaborative Web-policing program.

The first regards the potential efficacy of the program. According to the MU document, the program is intended to erect a sort of paralegal institution for both educating the public on copyright laws and dissuading it from transgressing them.

It’s reasonable to assume, however, that upwards of 95 percent of all media-pirating Web users are fully aware that they’re violating existing laws – and 95 percent is probably a conservative estimate.

This admittedly leaves only the ‘dissuading’ element of the program as being potentially relevant, and this relies on the threats of service to providers to attenuate their customers’ service and, more importantly, to actually follow through with those threats.

But lest we forget, in the eyes of ISPs, offending users are first and foremost ‘customers’ rather than mere ‘copyright infringers.’ Moreover, the UP agreement leaves those ISPs a significant deal of latitude in how they deal with delinquent subscribers.

At the end of the day, what reason does an ISP – say Comcast – have for badgering and threatening its customers and eventually driving them into the arms of its competitor? No doubt Verizon, for example, who has maybe adopted a more lenient approach to UP enforcement, is more than happy to welcome the prodigal pirate-subscriber to its fold?

Thus, will ISPs really willing to sacrifice customers (speak revenue) merely to keep in the good graces of Big Entertainment?

This leads inquiring minds to a second question; to wit, what possible dangling carrot could have lured ISPs into a voluntary deal that can – at least in this author’s limited knowledge – does nothing but harm their business?

From the side of Big Entertainment, of course, there’s no question of motive. The ubiquity and increasing sophistication of the Internet has their archaic and moribund business model creaking and tottering under its own weight. Like a man in spasmatic death throes, they’re flailing about and grasping desperately for anything that might help them survive another day – and mulct another dollar from media-loving consumers. But this issue has been written about ad nauseam in recent years and we’ll waste no more words on it here.

Simultaneously desperate and flushed from a series of minor legal victories, the entertainment barons recently saw their efforts to install a draconian and right-abusing legal regime (i.e. SOPA-PIPA) collapse in amidst cacophonous chants of “Internet freedom.”

Thus exposed to a public that finds their unscrupulous attempts to preserve their ailing cash cow increasingly repugnant, Big Entertainment has nothing to lose from the Memorandum of Understanding, however ineffective it may turn out to be.

But why the ISPs?

I’ll leave that question open for readers to deliberate, and in lieu of an answer I’ll point to an observation made by CNET which initially broke the story of the agreement last summer:

Negotiations over the main points of the Memorandum of Understanding dragged on for years between the ISPs and organizations representing the entertainment industry, and it wasn’t until members of the president’s administration stepped in to broker the deal that the reluctant ISPs began to acquiesce.