RIAA Finally Takes Aim at Newsgroups

With courtroom victories against P2P networks and individual users behind it, the Recording Industry Association of America is launching a new legal effort to take down binary newsgroup providers, which have long claimed immunity from copyright claims.

For now, the suit only targets Usenet.com. However, some worry that if the RIAA is successful, it could open the door to lawsuits against anyone who offers newsgroup services, possibly endangering the future of this nearly three decade old Internet staple.

Usenet, where newsgroups are located, has largely been relegated to secondary-citizen status in the overall Internet. Most ISPs offered newsgroups as part of their overall packages as recently as five years ago, but now many have ended service as newsgroups fell out of favor due to the rising popularity of the Web -- including e-mail and IM -- as a means of communication.

But newsgroups have quietly continued to flourish as trading centers for pornography, warez and MP3 music. A growing number of companies have built their businesses around this, serving as central storage houses for files uploaded to Usenet and selling access by the gigabyte to downloaders.

Even while the attacks on peer-to-peer networks such as Napster began in 2000, newsgroup providers continued to grow their businesses into multi-million dollar enterprises. GigaNews and EasyNews are among the largest, including NewsHosting, UsenetServer and the targeted Usenet.com.

Despite their different names, what they offer is similar: access to download anything uploaded to Usenet in the past 20 to 60 days. Some services like EasyNews have built extensive databases for searching through content, as well as handy tools to make downloading easier. A number of front-end services aid the process of finding material on Usenet, with a handful being sued in early 2006 by the MPAA.

Although none of the companies have spoken publicly about user numbers, insiders say that newsgroup service is a billion-dollar industry that is fueled by easy access to copyrighted content and pornography. EasyNews, for example, reportedly has well over a million users, each paying about $10 per month for the ability to download.

The largest Usenet download providers have extensive networks and push hundreds of gigabits of Internet traffic every second. EasyNews, located in Phoenix, has boasted the biggest network capability in all of Arizona, providing access to the likes of Cox and Comcast.

So why has it taken so long for the RIAA to set its sights on Usenet download providers? The answer lies in the Digital Millennium Copyright Act's Safe Harbor provision, which protects ISPs from copyright infringement lawsuits as long as they do not control what content is uploaded and take offending content down when notified.

Usenet companies have also enjoyed the protection of precedent, after a 2000 case against AOL by author Harlan Ellison who alleged that his works were uploaded to the newsgroup alt.binaries.e-book. The Ninth Circuit Court of Appeals agreed that AOL could not be found liable because it was simply acting as a conduit, and had no control over the content being shared.

However, this argument was the same used unsuccessfully by Grokster when defending itself against MGM. The U.S. Supreme Court found that Grokster could be found liable for the activities of its users, because it openly encouraged illicit file swapping and made no effort to stop it. And that is why Usenet.com and other newsgroup download providers could find themselves in hot water.

Unlike AOL, most of today's Usenet services have a file retention policy of greater than 14 days, which is one of the big selling points of their offerings. In addition, they encourage the downloading of huge files and offer tools that are especially useful when downloading warez and movies.

Usenet.com may have specifically drawn the RIAA's ire for the text on its Web site. In advertising its service, the company says that an account would allow access to "millions of MP3 files" and would allow the user to share other files as well.

The RIAA argues that this is essentially the same as what Napster, Grokster and Kazaa did - all of which have been enjoined by the courts. It also says Usenet.com encourages users to download files through promises of anonymous and untrackable downloading. "[The] defendant touts its service as a haven for those seeking pirated content," the suit alleges.

The big difference between Usenet and P2P, however, is the large number of legitimate uses for newsgroups, as well as the historical nature of the service, which has been around for 28 years. Unlike P2P, Usenet was not initially created solely to facilitate the trading of files. The vast newsgroup archive on Google can attest to Usenet's importance.

But if the RIAA can successfully argue that Usenet.com loses its DMCA Safe Harbor rights due to the specific nature of its service, other newsgroup providers -- at least those with a business selling binary download access -- could quickly find themselves in the courtroom. Usenet's dirty little secret isn't so little, or secret, anymore with hundreds of millions of dollars flowing in every year.

A request for comment from Usenet.com had not been answered as of press time.