After months of delays, a coalition of content providers and Internet Service Providers (ISPs) launched the Copyright Alert System, a “six strikes” structure that will notify, then potentially punish users for illegal file sharing. The system works through the monitoring of peer-to-peer file sharing services by content providers, who in turn will notify ISPs, who will send warnings to their account holders. As more warnings are received, increasingly severe sanctions may apply, up to a reduction in internet speed. The system, which will be fully rolled out over the coming weeks, is being hailed by the content community as a “model for addressing important issues facing all who participate in the digital entertainment ecosystem.” Critics describe the system as “Hollywood’s private enforcement arm, without the checks and balances public enforcement requires.”The system is the brainchild of the Center for Copyright Information, formed in 2011 to coordinate the efforts of content owners and ISPs to address internet piracy, particularly through peer-to-peer file sharing. The center’s current members include content creators such as the Recording Industry Association of America (RIAA) and the Motion Picture Association of America (MPAA), and broadband ISPs, including AT&T, Cablevision, Comcast, Time Warner Cable, and Verizon. The center is managed by executive director Jill Lesser, formerly with a variety of lobbying and policy organizations and experienced with technology, intellectual property, privacy, and free speech issues. A five-member executive board includes representatives from the major content and ISP members, plus a four-person advisory board, which includes representatives from government and public interest organizations including the users’ rights group Public Knowledge.
The center asserts that the goal of the Copyright Alert System is more educational than punitive. The center seeks to educate users about respecting copyright and encourage them to seek out legal venues for accessing content, such as video on demand from their cable or satellite provider, Netflix, Hulu, or Pandora for licensed online streaming, or iTunes or Amazon for MP3 downloads. As such, their “six strikes” system notification system is tiered with the first two strikes generating an “Educational Alert,” the next two strikes triggering an “Acknowledgment Alert,” and only the final two strikes imposing a “Mitigation Alert.”
Based on published reports, the system starts through the online monitoring of peer-to-peer networks by the content owners. Monitoring was a major part of the RIAA and MPAA lawsuits and is typically done through third-party monitoring services that mimic the actions of a peer-to-peer user searching for particular content. (The center’s FAQ page asserts that only peer-to-peer network use is monitored and not general internet use.) Users who make copyrighted content available through peer-to-peer networks will be identified by their IP address and ISP. At this point, the ISP takes over and sends the first in the series of alerts to their customer. The first two alerts simply advise the customer that the account has been “involved in possible copyright infringement activity.”
The subsequent alerts are expected to vary slightly depending on the specific ISP. Torrentfreak.com published a copy of Verizon’s Alert plans and a partial copy of AT&T’s plans at http://torrentfreak.com. Based on these reports, the third and fourth alerts will generally involve some form of redirect to a webpage with a video presentation and a requirement to formally acknowledge receiving the alert before being permitted to access the peer-to-peer services again.
The fifth and sixth alerts are expected to involve some form of sanction or “mitigation.” These mitigation measures may include a temporary (2 to 3 day) reduction in internet speed, the blocking of peer-to-peer sites until the completion of an online tutorial, and/or requiring contact with the ISP. The center’s FAQ asserts that, “ISPs will not use account termination as a Mitigation Measure.”
What if the user believes that they have received an alert in error? The system provides for an “Independent Review” of the alerts. This review is administered by the American Arbitration Association and involves a fee of $35. If the challenge is successful, the fee will be refunded. It is expected that most users will only challenge the alerts at the Mitigation stage, however, it is likely that ISPs should expect customer service contacts from users who feel they have received any alerts in error.
So does the establishment of the Copyright Alert System mean that there will be no more lawsuits by the MPAA and/or RIAA against users involved in file sharing? The members of the center behind it seem to be expecting that through education and mild sanctions as a form of warning, that lawsuits would be unnecessary.
That said, there is nothing in the system that would prevent pursuing a lawsuit, particularly if illegal infringement continues after the “six strikes.” Even though the content monitoring will identify particular IP addresses and ISPs that are engaged in illegal file sharing, privacy laws prevent the ISP from communicating the name, address, and other identifiable information about the account holder with the content owner. An exception exists when the content owner elects to sue the user and uses a court subpoena to obtain the name of the account holder from the ISP. The Torrentfreak.com document from AT&T reportedly notes that after the fifth alert “the content owner may pursue legal action...and may seek a court order requiring AT&T to turn over personal information.”
Reaction to the Copyright Alert System has been mixed. Supporters appreciate the coordinated efforts among multiple stakeholders and emphasis on education over punishment. Critics describe it as a form of “digital vigilantism” and assert that the system is based on content owners’ views of copyright and infringement, failing to recognize certain user rights such as fair use. Critics also have indicated that the system may only have limited effect. It does not monitor infringement through streaming websites or file-hosting services, and use of a VPN, proxy service, or open Wi-Fi service may inhibit monitoring.
Interestingly, there has not been much discussion over the basic legality of the Alert System. Monitoring of peer-to-peer file networks by simply searching the networks for available copyrighted files is not a violation of privacy law, so long as there is no active invasion of users’ computers. Nor is the reporting of the IP addresses to the ISPs by the monitors. ISPs are permitted to contact their customers as needed, but they are not allowed to share customer information with others. By having the information about the user flow from the IP address identified through monitoring to the ISP then to the customer, neither the content owners nor the ISPs appear to be violating privacy laws. The temporary speed reductions may trigger concerns about net neutrality, but the current state of rules on net neutrality offered by the Federal Communications Commission suggest that the reductions are permitted as long as there is no blocking of legal content, no unreasonable discrimination, and adequate transparency. (Rules are available online at www.gpo.gov/fdsys/pkg/FR-2011-09-23/pdf/2011-24259.pdf.)
The Copyright Alert System will roll out via the member ISPs over the next several weeks or months. How much publicity the ISPs will send on to their customers is unknown, so it is possible that the only notice users may receive is through their first alert.
