Comcast’s plan to turn pirates into customers: breakthrough or bogus?

Millions of people download pirated versions of popular shows like Games of Thrones rather than pay for them. The studios that make the shows hate this fact and have for years tried everything from mass litigation to working with internet providers to create a “6 strikes” regime to punish the pirates. Yet piracy remains a problem.
Now, though, comes an intriguing report that Comcast(s cmcsa) — a huge corporation that is both internet provider and owns major studio — wants to respond to pirates not with law enforcement tactics, but with sales offers.
According to Variety, Comcast is in talks with ISP’s and content owners to create a real-time system that will display pop-up sales messages whenever someone is downloading a show. Full details are unclear but the basic idea seems to involve filling a pirate’s torrent stream with links to legitimate content. Comcast itself has stayed silent about the plan.
If it’s true, the plan represents a major shift in the piracy debate, one that would begin treating piracy as a pricing problem more than a criminal one. This would jive with renowned copyright scholar Bill Patry’s theory that the best response to a piracy epidemic is to flood the zone with licensed, affordable content.
But those hoping this means an end to the copyright wars shouldn’t start clicking their heels just yet. That’s because, even if Comcast really is having a road-to-Damascus moment, that doesn’t mean its proposed plan is workable – or that the rest of the industry will follow suit.
In the event that Comcast goes forward with the plan, will it rely on Deep Packet Inspection or real-time notification from third parties that track content? And what’s in it for ISP’s, which have traditionally resisted efforts to make them police piracy?
As Ars Technica notes, Comcast is not just an ISP but a major content owner; this means, it would directly benefit from prodding pirates into buying content. For other ISP’s, the benefit is less clear, especially if they don’t receive a commission on sales. And if Comcast applies the system only to the shows it owns (Seinfeld, 30 Rock and so on) without applying it to competitors, is that an anti-trust issue?
Finally, there’s the question of how a real-time sales system would affect the laws that shelter ISP’s from liability for copyright infringement. Many of the balances set out in the current DMCA law are based on the premise that online service providers don’t have an active role in what takes place on their servers and networks. Would a real time sales system, in which ISP’s are actively trying to monetize piracy, undo this? Who knows.
The bottom line is that Comcast’s proposal could be a game-changer for a vexing piracy problem. But it’s way too soon to say if the company is serious or if the plan would actually work.