1. Cypherpunk on March 9, 2004 08:38 PM writes...

I don't understand your example. The licensing org sees two file sharers at two different times on the same IP address; one is infringing, and one is not.

Can the licensor tell the difference? I.e. are you assuming that legal users advertise the fact as they upload/download? So that the licensor knows that one is good and one is bad?

I think you must be assuming this, because if the licensor had no way of telling which file sharers are good or bad then it would be a totally random fishing expedition to sue a filesharing user and see if he happened to have a license. Obviously that would never work.

So going back to this assumption, why does the licensor have to file two lawsuits? There is only one infringer. Can't they go to the ISP and say, this particular IP addr at this particular time was infringing. Tell us the user who had that address at that time. And they can then go to court to get the information.

Now, I agree that it would be more efficient if they could send such requests in a big batch to the ISP and get back all the names. Doing it onesies is going to be expensive. But it doesn't seem quite as bad as you describe it, unless there is something I am missing.

2. Ernest Miller on March 9, 2004 09:04 PM writes...

I think you are missing the point. I'm assuming that the legal users don't advertise that fact. Thus, my argument is that the licensor cannot tell which filesharer is good and which one is bad.

If the licensor goes to the ISP and asks for the information, the ISP has no obligation to hand it over, and probably won't in order to protect the privacy of its users. Why should the ISP cooperate, given that the ISP hasn't gotten a blanket license for its users already? This would force the RIAA to go on legal fishing expeditions, not knowing whether there was any infringement or not.

3. Cypherpunk on March 9, 2004 10:34 PM writes...

So the licensing agency doesn't have any idea who is good and who is bad? On what grounds will they file a lawsuit to learn a user's identity? Just on the random chance that maybe he will happen not to have a license?

I think for the EFF system to work, it will have to be possible to tell that a person is legal. I don't see why it would be that hard to provide incentives for people to reveal this fact. They could have some software agent at their IP address that responds to pings with the licensing info. Then the agency could give away prizes among subscribers who got lucky enough to get pinged.

4. AdamThomas on March 10, 2004 01:13 AM writes...

The crux of your argument seem to be that individualized suits, and the decreased chance of legal sanction that severance brings, will tip the scales so that what the EFF projects to be a "relatively small percentage of [free-riding] file sharers" will in fact "pose a serious risk to a collective licensing system." ( A Better Way Forward ).

However, as mentioned in the White paper, one key aspect of moving to Voluntary Collective Licensing (VCL) system is so that the licensing cost will be low enough that it would be economically disadvantageous for an ISP NOT to incorporate licenses and thus eliminate the possibility of serving a "free-rider", when compared to the potential cost of a prolonged legal battle for customer information.

The question may be, in a highly competitive consumer ISP market, would it behoove providers to forgo licensing, ostensibly keeping their prices $5/mo lower than a license-compliant provider?

I think the answer is "no" because therein copyright holders would have particular ISPs to target, and the resulting legal fees would very easily cause a net loss in the decision. Additionally, the consumer is choosing between a service that will most assuredly protect their privacy and a service wherein their privacy MIGHT be compromised via subpoena.

On balance, I do not believe severing suits will negatively affect the promise of VCL. To the contrary, the current high-unit-cost/high-free-rider system has much more to lose in light of the EFF's recent victory.

5. Ernest Miller on March 10, 2004 01:56 AM writes...

What legal fees for the ISPs? The ISPs are currently fighting to set the stage for the procedural challenges. As it stands now, at least in Pennsylvania, if the RIAA wants the identifying information for a particular IP address, they are going to have to sue for the identifying information. At that point, the ISP notifies the individual sued and the individual sued can choose to fight the subpoena or not. I'm not sure why the ISP has to incur the costs of litigation now that many of the procedural issues have been settled.

I'm not sure why an ISP might not choose to have lower license fees, after all, the license only protects the ISP's customers from lawsuits regarding music, and then only imperfectly (not all music will be licensed). I don't think the MPAA and BSA will ignore the individuals who use P2P forever.

As far as individuals go, sure their privacy will be protected with regard to music sharing, but is music the only thing they are sharing? In any case, why pay the $5/month if you can download for free with no fear of being caught?

Will the the licensor only license to ISPs? Will people who want to be law-abiding be refused a license because their ISP won't cooperate? If so, that is going to be problematic for a number of reasons.

So, I'm not convinced that ISPs are all going to jump on the licensing bandwagon as long as there is no enforcement mechanism to decrease free-riding downloaders.

6. David Carroll on March 13, 2004 07:03 PM writes...

Just a thought - the ISP could partition its dynamic IP address space between those who have paid the filesharing fee and those who have not. Then a copyright owner that suspects infringement could make a query to the ISP, "Has IP address X paid up for filesharing?", and the ISP could answer "yea" or "nea" trivially, without actually revealing any personally identifying information (or even needing to look up the customer in question itself.)

7. Ernest Miller on March 13, 2004 07:34 PM writes...

They could. But why would they want to? There would have to be an incentive.