Contrary to the endless lobbying and subsequent defending of the now-dead SOPA and PIPA frameworks, a leaked report shows that earlier this year the RIAA's Deputy General Counsel admitted that the legislation was "not likely to have been effective tool" for dealing with music piracy. All efforts are now being put behind the "six strikes" plan - but could disconnections for repeat infringers still be on the agenda?

“These illicit sites are among the culprits behind the music industry’s more than 50 percent decline in revenues during the last decade, resulting in 15,000 layoffs and fewer resources to invest in new bands,” wrote RIAA CEO Cary Sherman in a New York Times piece last year.

“It should be unacceptable to any of us involved in legitimate commerce online that a rogue Web site based outside the United States — but hawking American products or copyrighted works — can currently escape our laws.”

SOPA and PIPA

Sherman was writing in support of the Stop Online Piracy and Protect IP acts, legislation that if passed would have removed infringing websites from the United States Internet. But quietly behind closed doors earlier this year one of the RIAA’s most senior lawyers admitted that the legislation would not have been effective against online piracy.

The revelation appeared in a presentation (pdf) made by RIAA Deputy General Counsel Victoria Sheckler to IFPI members in April 2012, part of which we covered yesterday in our report on how offline music swapping dominates that done online.

In a section detailing recent legal and policy developments, Sheckler said that after “opposition to bills, activated by Google, went viral,” SOPA and PIPA were “essentially dead.”

But rather than opposition staying focused on these pieces of legislation, the RIAA Deputy General Counsel admitted that dissent had spread, with “anti-SOPA sentiment in netizens

being used by opponents to oppose other copyright protection measures.”

Companies, Sheckler added, were now on “heightened alert” – an assertion confirmed by the recent Internet Bat Signal initiative.

But perhaps of most interest is the confession that even if they had passed, SOPA and PIPA would have been of little help to the music industry.

Sheckler notes that the legislation put forward an “important principle regarding intermediary responsibility,” a reference to ISPs being told to block “rogue” sites –

but then added the following:

“Legislation not likely to have been effective tool for music.”

So, with SOPA and PIPA dead – at apparently no real loss to the music industry after all – the RIAA is focusing on something else.

The “Six Strikes” Copyright Alert Scheme

Sheckler’s presentation states that under the scheme infringement notices face a number of “potential challenges” such as “fair use, authorized use of work, pre-1923 work, misidentification of account, unauthorized use of account and misidentification of file,” but nevertheless the RIAA believes the system is robust enough to have a positive effect with its “consumer friendly” approach.

“Evidence exists that most users would modify their behavior if alerted to the risks associated with using certain P2P services and/or made to believe they will face consequences if caught infringing,” Sheckler notes.

Those consequences are detailed as follows – temporary reduction in speed, temporary step-down in service tier, redirection to landing page until subscriber contacts ISP, temporary restriction of Internet access, and redirection until subscriber completes meaningful education on copyright.

The presentation then notes that ISPs will not be required to terminate subscribers’ accounts as part of the “six strikes” program itself, but that eventuality is not being completely ruled out it seems. Sheckler says that disconnections can be ordered by service providers themselves.

“ISP’s terms of service/acceptable use policies prohibit infringement and permit the ISP to terminate the account if it is used for infringing activity,” she writes.

Some ISPs do indeed threaten to disconnect users for infringement based on a TOS violation. However, Sheckler says that the responsibilities of Internet companies go further and as carriers they are governed by legislation.

In order for ISPs to be eligible for safe harbor provision under the DMCA, she writes, they are required to have a “termination policy for repeat infringers” under “appropriate circumstances.”

So, although account disconnections aren’t specifically included in the list of “six strikes” mitigation measures agreed in the Memorandum of Understanding, the RIAA is clearly aware that if they’ve issued infringement notices against an account holder six times, then that user has a good chance of being viewed as a “repeat infringer” by their ISP – at least if prompted to do so by the RIAA.

By not including the ultimate disconnection sanction in the MoU it’s a win-win for the RIAA and the ISPs. The RIAA can honestly state that it’s not part of the agreement, and should the ISPs disconnect a user, they can blame that on the laws of the land.

Whether or not the RIAA will prompt the ISPs to go down that route remains to be seen, but the option is there should the “six strikes” program fail to have the intended result.