A controversial program designed to thwart individuals who download copyright-protected material via the Internet was launched today by the film, television, and music industries—their latest effort to combat online privacy.
The Copyright Alert System (CAS), also known as the “six strikes policy,” is a program created by the Motion Picture Association of America (MPAA), the Recording Industry of America (RIAA), and the five largest Internet service providers—AT&T, Cablevision, Comcast, Time Warner, and Verizon. The program, according to its creators, was established to “educate” web users who download copyrighted music, films, and other materials.
The Center for Copyright Information (CCI), the umbrella group established by the CAS’s backers to administer the program—says the CAS provides the entertainment industry with a new tool to combat online piracy and is intended primarily as a way to teach online users about copyright and piracy. But opponents of the new program say it will do more harm than good. The system, they say, will do little to stop illegal downloading—instead, it will hurt small businesses that provide open wireless networks, and it will hamper moves to create open wi-fi networks in urban areas across the U.S. Finally, it could lead to litigation, as individuals challenge the action of being targeted and penalized by a private body.
“There are a lot of problems with this system,” said Corynne McSherry, intellectual property director at the Electronic Freedom Foundation. “They’ve essentially created a private, extra-legal process with real consequences, without the balance and protections of a real judicial process.”
According to the CCI, the newly adapted six-strikes policy works like this (with slight variations depending on the ISP): Individuals caught downloading copyrighted content illegally will be sent an email and a voicemail informing them they’ve been caught. The message will also give the alleged infringers information on how they can determine whether file-sharing software is operating on their computers, how to remove it, and where they can find information about obtaining content legally. If the users continue the activity, they may receive another notice, similar to the first.
If the behavior persists a third and fourth time, the ISP will redirect browsers of the offending users to a webpage where they must acknowledge they received and understood the alerts. The page will also include a short video about copyright law and the consequences of copyright infringement.
If the individuals are caught a fifth and sixth time, “mitigation measures” go into effect—meaning their Internet connections will be slowed considerably for several days.
And what if the alleged infringers continue their activities? “The CAS takes no further action after mitigating twice,” Jill Lesser, executive director of the CCI told CorpCounsel.com. “We take the position that if they haven’t stopped after repeated warnings, they’re not the kind of user who will respond to our educational efforts.”
Content owners could, in theory, still go to the ISPs with subpoenas so they can sue the violators, but Lesser said the CAS members do not intend to use the system to glean information to pursue infringers in court. “This is not a backdoor way to enhance lawsuits,” she said. “That is a tried and failed strategy.”
From about 2003 to about 2008, owners of media and music content did litigate against individuals for infringement. But that proved to be both unpopular and unsuccessful.
Under the new program, users who believe they’ve been mistakenly targeted with mitigation measures have two weeks in which they can file for a request for an independent review, for a fee of $35. (The fee can be waived under certain circumstances.) The CAS website says the independent review program will be run by the American Arbitration Association, an organization that provides fair and neutral alternative dispute resolution.
“We really are thinking of this as an information and educational program,” Lesser said. “This is not a judicial or quasi-judicial program.”
But EFF’s McSherry told CorpCounsel.com the independent review process does not offer people the same kinds of protections that a true legal process would provide. “What about an appeal of the ruling?” she said. “What about getting access to the information your accuser is using against you?”
How does the CAS know someone is downloading illegally? The CCI’s partners—companies that own and develop music, movies, and TV shows—join peer-to-peer networks and locate the music, movies, or TV shows they have created and own. If they see a title on the network that is copyrighted, they identify the Internet Protocol (IP) address of any computer that shared the material illegally. They then notify the ISP that controls that IP address, and the ISP then passes on a Copyright Alert to its customer. “No personal information about consumers is shared between the content owners and ISPs, and ISPs are not involved in the process of identifying copyrighted content,” the CCI says.
Critics, which include technology and consumer advocacy organizations, also say the CAS will stifle efforts to create open wi-fi systems. The alerts that are sent out, for example, warn users that if they have an open system, they are at risk of facing mitigation. They then instruct users to protect their network. “They’re sending a message that you are responsible for everything that happens on your network,” McSherry said. “But that’s not necessarily true, and there is a growing movement that believes it would be tremendously beneficial to have a world where we can access the Internet anywhere on an open system.”
In addition, critics of the system take issue with the CCI for indicating that, because the CAS will not lead to termination of Internet service but will merely throttle back access, it is not that big a deal. “They say their program is educational—not punitive, but Internet access has become a basic service that we all rely on for basic activity,” McSherry said. “It’s like having your power cut off but no one has proved you did anything wrong.”
Concerns about unintended consequences of the new policy also include its effects on cafes and other semi-public Internet hot spots. Those places could wind up targets of ISPs if customers download copyrighted media, critics say.
The educational component of the CAS is also flawed, critics say, because it only addresses what copyright law does not allow people to do but fails to fully explain what people are legally entitled to do with copyrighted material.
Tech-savvy users say that, in the end, the system will do little to stop online piracy. Various alternatives and workarounds, such as proxies and VPN services, can be used to disguise IP addresses and get around the system, and the true pirates already avail themselves of these, they say.
Lesser said the CCI has concluded that most people have very little understanding of what copyright means and would stop online infringing behavior if they knew. The CAS, she said, which took about 2 1/2 years to devise, is intended to target those who are not trying to circumvent the law.
But the real solution to online piracy, McSherry said, is for media content owners to make more content available through legal alternatives. “The music industry learned this to some degree years ago, but the owners of other media don’t seem to get it yet,” she said.
By Lisa Shuchman
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