Two-Headed Monster

We have mentioned the battle within Sony between content and electronic device divisions as representative of the larger struggle going on between rights and usage.

Now the perspicacious Farhad Manjoo looks at a similar continental divide within AOL Time Warner:

But stuck in the middle of this fight is a firm that is both a huge copyright holder as well as a huge Internet company — in fact, it is the leading company in each industry. This is AOL Time Warner, a neither-fish-nor-fowl hybrid of copyright and consumer interests, a combination that has left the company pretty much speechless on a case that could determine the privacy rights of its more than 30 million subscribers, not to mention the rest of us. While other ISPs are running scared, AOL, the biggest ISP of all, is keeping mum. [Salon]

Manjoo describes the Verizon case, then notes that:

….AOL’s silence is conspicuous given its unique position as a troubled sister-company to the world’s largest media firm. Its silence may also have important practical effects. “They’re the biggest ISP, and if they said, ‘Wait a minute, we think there’s a problem here,’ that would be taken very seriously by the courts,” says Cindy Cohn, the legal director of the Electronic Frontier Foundation. “I think there’s no question that would be a tremendous voice.”

But will that voice speak out — or will it be muffled by the media interests that now appear to control AOL Time Warner’s future? It’s not really an exaggeration to suggest that the privacy of your actions on the Internet could depend on what this single company does next.

….Nobody has a larger number of subscribers than AOL, or would be likely to take a bigger hit if suddenly forced to crack down against every instance of file-trading that an AOL subscriber engages in. But, at the same time, no company has more media properties at risk from file-trading than AOL Time Warner.

….Verizon says it will appeal the decision. The stakes are enormous. If you accept that Congress really meant to say what Bates and the RIAA say it meant — that anyone who suspects a copyright violation can obtain the alleged infringer’s identity rather easily and without judicial review — then the DMCA would seem to be much more unreasonable, and much scarier, than even critics of copyright owners have previously said. According to ISPs, consumer groups, and legal experts, the practical effects of this ruling would be terrifying — and AOL’s silence on the issue despite these consequences “is deafening,” says one person in the industry.

….copyright-sleuthing bots — software programs that scan the Internet for files that “seem” like illegal copies, a determination that can be made on as little evidence as a filename that appears fishy, like “MetallicaSong.mp3” — are already in use today. They are run by copyright-enforcing firms hired by media companies; everyday, these firms bombard ISPs with requests to pull from their network material that appears to be illegally copied.

….Although AOL Time Warner has refused to say much about its position on this case, the company hasn’t, really, been officially silent. Rather, it has held two diametrically opposite views that, taken together, signify a deeply split identity. On one side are many of the company’s media subsidiaries — its record labels and movie studios — which are part of the RIAA. On the other side is the company’s online division, AOL, which is part of the U.S. Internet Service Provider Association, an ISP trade group that filed a legal brief in support of Verizon, and therefore against the RIAA in this case. Through two trade groups, then, AOL has technically told the court that it’s on both sides of this issue. Talk about a tough merger!

….The process set by AOL to comply with ordinary civil subpoenas would seem to be protective of a user’s identity; but the scheme wouldn’t work with the sort of DMCA 512h subpoenas that AOL’s media siblings are seeking. If AOL received a 512h subpoena, it would not have the opportunity to check whether such a request had any merit. And the subpoenas — which Bates said were designed to be “expeditiously” processed — would not give the company and users a few days to think over the request.

….Perhaps, in the end, silence is AOL’s only rational option, at least until its internal politics are solved.

“AOL’s problem is they’re just a two-headed monster,” Mark Cooper, of the Consumer Federation of America, likes to say.

The important question now is, which monster is bigger?