Slowing down the internet won't stop music piracy

There was a moment during the oral arguments of a copyright case before the US Supreme Court this week that ought to give pause to everyone who uses the internet - that is, pretty much everyone. No, I don't believe any horror is coming, whichever way the justices rule. But now and then one finds buried in a complex lawsuit an issue to which we should all pay attention.

The case that generated this particular sit-up-and-think moment is Cox Communications, Inc. v. Sony Music Entertainment, the latest go-round on the much-litigated issue of the liability of internet service providers for piracy by their users. The plaintiffs complained that defendant Cox had not done enough to prevent illegal downloads of copyrighted materials; a jury agreed and awarded the plaintiffs $1 billion in damages.

A billion dollars isn't what it used to be, and 10-figure jury verdicts, if not quite as common as cheese, are nevertheless far from unheard of. But the Supreme Court isn't being asked to decide whether the damages are too large. The US Court of Appeals for the Fourth Circuit addressed that question. The justices are being asked what precautions ISPs must take in a world where online piracy remains rampant.

Rampant, as in 17 billion (that word again!) internet users who visit music piracy sites annually.

The case before the court is, technically, about whether Cox is protected from charges of contributory copyright infringement under the "safe harbors" section of the Digital Millennium Copyright Act. The provision shields ISPs from liability as long as they implement policies providing for "the termination in appropriate circumstances" of users "who are repeat infringers." The plaintiffs, members of the Recording Industry Association of America, argue that the defendant forfeited this protection by what the Fourth Circuit called its "lackluster" response to complaints of infringement.(1)

That's what the case is technically about, and it's an important issue. The law professor in me is fascinated.

But let's talk about that sit-up-and-think moment.

It began innocuously. Justice Elena Kagan asked why the service providers don't just deny access to those who are caught frequently infringing. E. Joshua Rosenkranz, representing the defendants, responded by listing what he called "the highest recidivist infringers":

They are 15 regional ISPs, 10 universities, nine hotels, and so forth. Those are the entities that are most likely to be cut off ....

The point of emphasizing where infringement comes from - in its brief, Cox also mentioned military barracks and housing complexes - is to combat the image of the alienated teenager in pajamas accessing BitTorrent to download his endless, depressing playlist. Increasingly, the infringer is hiding somewhere in a larger entity. If the ISP, to protect itself, must cut off the entity, a lot of innocents will suffer.

But online, whether one is obeying the law or trying to get around it, speed is everything. This is the nub that became clear in a colloquy between Justice Samuel Alito and Paul Clement, who argued on behalf of the plaintiffs. Alito asked whether a university whose students illegally downloaded copyrighted material should be liable for infringement. Clement began his answer by drawing an analogy to hotels, which, he said, "don't provide their guests with services at a speed that are [sic] sufficient to do peer-to-peer downloading," because they don't want those guests to "upload and download copyrighted works."

This was news to me; most commentators say that the problem at hotels is outdated equipment - which is to say, underinvestment. But never mind. Clement offered the hotel example in order to set up the next one:

I don't think it would be the end of the world if universities provided service at a speed that was sufficient for most other purposes but didn't allow the students to take full advantage of BitTorrent. I could live in that world.

I suspect that on that last line, Clement's tongue was firmly in cheek. I could live in that world, but then I'm a committed and hopeless bibliophile.

What universities know, however, is that the students couldn't. Neither could a lot of other innocents. Clement's broader point was that unless one wants to take such extreme measures, the only option is liability for the ISPs. He knows, as we all do, that slowing internet speeds is no more the answer to online piracy than slowing construction of data centers is the answer to high electricity prices.(2)In both cases, one needs a solution that does not make people who are doing no wrong worse off.

And that's where the true challenge arises. As usual where technology is concerned, the world has outstripped the statute. When the Digital Millennium Copyright Act was passed in 1998, the highest speed available to most residential internet users was - I kid you not - 56 kbps. Alas, the piracy problem will keep getting worse as long as broadband keeps getting increasingly ... well, broad. The faster your internet speed, the easier it is to download the movie or song.(3)Faster speed means easier legal access; easier legal access means easier illegal access.

Don't get me wrong. I'm against piracy, and I hope I don't seem biased in taking the position that content creators should get paid. But I also recognize that the ISPs are in a difficult position. At one point, Justice Amy Coney Barrett asked Clement whether the only protection for "the university or the hospital" was to trust that the copyright holder would be a "good corporate citizen" - that is, not bring suit.

Clement, a former US solicitor general, deftly shifted back to the liability of the service provider, but Barrett's question lingers. If service cutoffs are to be easy and quick, we really do have to trust the judgment of the copyright holder; if they're to be hard, we're trusting the judgment of the potential infringers.

Maybe Stewart Brand, properly quoted, was right all along: Information wants to be expensive and information wants to free.

Too bad the law can't accommodate both.