Last week, the FCC ruled Comcast could not slow down the transmission of peer-to-peer file sharing downloads over its broadband network in a precedent-setting decision.  You can read more about the decision here, here and here.  The FCC ruled Comcast’s actions were unlawful because all lawful conduct online is supposed to be treated equally in the interest of an “open and accessible” internet. 


Comcast said it slowed down certain high-bandwidth services to manage its network.  If my neighbor does nothing but peer-to-peer all day, while I just want to get on and check emails and sports scores, should my service be clogged by his band-with hogging?  Comcast took the position that it should be able to “throttle” my neighbor’s use, for the betterment of the experience for the masses.  They also raised questions about the FCC’s jurisdiction in this area.  The two dissenting commissioners would’ve ruled for Comcast on this ground which is likely to spur a subsequent lawsuit.  


OPEN AND ROBUST INTERNET ACCESS:  The consensus is that Comcast is not alone and it is an industry-wide custom to “manage” broadband traffic.  This is the first time the Government has affirmatively come out in favor of net neutrality despite Congress’s failed efforts.  If it stands, it will likely ensure net neutrality for some time to come. 

DISCLOSURE:  The FCC really focused on Comcast’s failure to disclose its traffic management to its subscribers.  The majority of FCC Commissioners compared undisclosed web traffic management to the post office looking at a mailed package and deciding for whatever reason to return it to the sender without providing any reason why or advanced notice that the post office wouldn’t deliver it. 

MANAGEMENT GONE AWRY:  Many net neutrality advocates were concerned that Comcast could manage certain “content” rather than “format.”  Could Comcast slow down the traffic to the websites of its satellite dish competitors?  Could it slow down the traffic to a critic’s site? The rogue possibilities are endless.   Comcast was never accused of these acts, but it was a slippery slope the FCC would like to prevent. 


YOUR BROADBAND WILL BECOME SLOWER:  Without the ability to manage the traffic, broadband will become slower for everyone.  The FCC dissenters and Comcast made this the main argument other than jurisdiction.  The FCC majority countered there has never been any evidence of this.  As a Comcast Broadband subscriber at home, I will have to see if I notice any slowdowns in the near future.

MENU PRICING:  Rather than charging flat fees for unlimited access, several cable companies say they may have to start charging for usage and file loads as a way to prevent the more general public from baring the brunt of the cost of heavy peer-to-peer users.  Market forces will have an impact on whether this ever comes to fruition.

Why You Should Care

Presumably you do not own Comcast or run a business dependent on peer-to-peer file sharing.  You should care nevertheless.  Surely, you would be appalled if the media decided certain stories were too complex for a one minute TV piece or 6 inches of copy so  they simply decided no one could cover the stories or provide access to it, even if you wanted to go find it.  We already put up with unsavory websites, spam and other inconveniences so a slightly slower broadband connection (if it actually happens), is something I am willing to put up with to make sure no one, government or otherwise, restricts what I can access.  If the public really desires managed broadband access, the market will account for that and offer such a service that may be slightly faster, but managed.  Those same market forces will likely force Comcast and others to provide the same service today that they provided while they managed their networks.  Regardless, for now, give me my unfiltered internet access–warts and all.

Jammie Thomas, the defendant recently found liable to the RIAA for $222,000 for illegally sharing 14 songs, filed a motion for retrial claiming the fine is unconstitutionally excessive. The Eighth Amendment to the Constitution prohibits courts from imposing excessive fines.

A Minnesota jury awarded the RIAA $220,000 against Jammie Thomas for illegally downloading 24 songs online on the Kazaa file sharing network. Thomas, a single mother, contended she never downloaded any of the signs and her lawyer argued there was no way to prove who actually downloaded the songs. This is the first of the case to go to trial. The RIAA has sued more than 26,000 for similar violations.

The jury took only five hours to reach their decision– a $9,250 fine for each of 24 shared songs cited in the case, including Godsmack’s “Spiral,” Destiny’s Child’s “Bills, Bills, Bills” and Sara McLachlan’s “Building a Mystery.” The fine could have been as much as $150,000 per song had the jury determined she wilfully engaged in copyright infringement.

The RIAA previously offered her, and thousands of others, a settlement in exchange for the payment of a couple thousand dollars. The RIAA has lost some battles in the past, but this victory may convince many others it is not worth the fight. The decision is likely to be appealed unless the parties agree to settle for a nominal amount so the RIAA can use this as a club in future disputes.

Declan McCullagh over the Iconoclast blog on C| offers “Four reasons why the RIAA won.” He writes the first was that the RIAA was able to match a username and IP address with Thomas. Thomas used the Kazaa username “tereastarr” and had an email account with hotmail with the same account.

McCullagh next points to the jury instructions in the jury charge. The judge agreed to the RIAA’s version of the instructions which included:

JURY INSTRUCTION NO. 14: The act of downloading copyrighted sound recordings on a peer-to-peer network, without license from the copyright owners, violates the copyright owners’ exclusive reproduction right.

JURY INSTRUCTION NO. 15: The act of making copyrighted sound recordings available for electronic distribution on a peer-to-peer network, without license from the copyright owners, violates the copyright owners’ exclusive right of distribution, regardless of whether actual distribution has been shown.

McCullagh claims the “making available” instruction was the key issue because it prevents the RIAA from proving others actually copied the music from Thomas’ file.

Finally, McCullagh claims “copyright law is harsh” because finding liability, the jury was forced to pick a fine between $18,000 and $720,000.

Richard “Richie Ramone” Reinhardt, the Ramones former drummer filed a lawsuit today asking for $900,000 in royalties for songs purchased on the Internet by fans. Reinhardt, the band’s second drummer and one of the remaining survivors of the punk rock trendsetting band, has sued Wal-Mart, Apple, RealNetworks and others, including the management and the estate of the band’s lead guitarist. Reinhardt wrote six of the band’s songs.

He claims he did not consent to sell the songs digitally and he did not fully sign the rights to the songs he produced. He wants an injunction to prevent the digital distribution of his music.

The RIAA’s target in Interscope v. Rodriguez claimed victory. In its textbook suit, the RIAA sued Yolanda Rodriguez claiming she downloaded illegal music, but failed to offer any specific evidence or proof of its claims.

After the defendant defaulted, the federal judge surprised the RIAA when he not only denied the default judgment, but also dismissed the entire suit for failure to state a claim. The judge determined the pleading had nothing but conclusory statements based on “information and belief”

The impact of this ruling remains to be seen, but it could provide fodder for all RIAA defendants to challenge the strength of RIAA’s pleadings across the country.

After several successful suits trying to go after illegal music downloaders, the RIAA (the Recording Industry Association of America) met one if its first set backs. RIAA sued Deborah Foster in November 2004 after claiming her IP address was connected to illegal downloading. The RIAA expanded the suit by suing daughter Amanda who defaulted. The RIAA continued to pursue Deborah. A judge dismissed the complaint against Deborah Foster and ordered the RIAA to pay attorneys’ fees, the amount of which was decided today.