ALM Properties, Inc.
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Your Computer on Molasses
A controversial program designed to thwart individuals who download copyright-protected material via the Internet was launched in February by the film, television, and music industries. Proponents say that this latest effort to combat online piracy will educate consumers about copyrights. But critics complain that it's a misguided system that will do more harm than good. And it could affect cafes and other venues that offer Wi-Fi access.
The Copyright Alert System (CAS), also known as the "six-strikes policy," was 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 Center for Copyright Information (CCI), the umbrella group established to administer the new program, says that it provides the entertainment industry with a valuable new tool.
But skepticism abounds. "There are a lot of problems with this system," says Corynne McSherry, IP director at the Electronic Freedom Foundation (EFF). "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 six-strikes policy works like this (with slight variations, depending on the Internet service provider, or ISP): Individuals caught illegally downloading copyrighted content will be sent an email and a voicemail informing them that 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 Web page where they must acknowledge that they received and have understood the alerts. The page will include a video about copyright law and the consequences of infringement. If the individuals are caught a fifth and sixth time, "mitigation measures" go into effectmeaning that their Internet connections will be slowed considerably for several days.
And what if the accused continue their activities? "The CAS takes no further action after mitigating twice," explains Jill Lesser, executive director of the CCI. "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 efforts."
Content owners could still, in theory, go to the ISPs with subpoenas and sue violators, but Lesser says that CAS members do not intend to pursue infringers in court. "This is not a backdoor way to enhance lawsuits," she says. "That is a tried and failed strategy."
From roughly 2003 to 2008, owners of media and music content did sue individuals for infringement. But that proved both unpopular and unsuccessful. They also tried to get Congress to back antipiracy legislation last year with the Stop Online Piracy Act (SOPA)a move that sparked an unprecedented online protest led by Google, Wikipedia, and other top technology firms. The proposed law, which many viewed as a threat to the Internet, was withdrawn.
The Copyright Alert System, however, takes a different approach to stem online piracy, its proponents say. "It's not about punishment," says Rick Cotton, executive vice president and general counsel of NBCUniversal. "The Copyright Alert System is one piece in a larger effort to communicate and educate individuals about what is acceptable."
Those other measures include convincing video-sharing sites to use filtering systems to prevent downloading of copyrighted material, urging credit card companies to refuse to do business with violators, and pressuring online ad networks to stop doing business with sites that link to copyright-infringing content, he says. "We're taking small steps in the journey of getting from where we are to where we need to be," he adds.
But Fenwick & West partner Andrew Bridges says those measure and CAS add up to "soft SOPA": "It's an instance of soft lawa law that has de facto effect without being passed by any legislature." Bridges argues that in this day and age, interfering with broadband access amounts to draconian punishment. In addition, he says, the new system fails to target the worst infringers, who circumvent conventional ISPs anyway. "The Copyright Alert System is a form of vigilante justice," he says. "It's a group of private parties who by agreement are taking the law into their own hands."
Under the new CAS program, users who believe they've been mistakenly targeted with mitigation measures have two weeks in which they can request an independent review, for a fee of $35 (which 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.
Lesser says 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, which took about two-and-a-half years to devise, is intended to target those who are not trying to circumvent the law, she adds.
"We as a society are still trying to figure out the rules of broadband," Cotton says. "But it's not in anyone's best interest for broadband Internet to be a lawless environment like the Wild West, and it's our aim to use this system to educate."
The EFF's McSherry isn't mollified. The review process, she says, doesn't offer people the same kinds of protections that a true legal process would. "What about an appeal of the ruling?" she asks. "What about getting access to the information your accuser is using?"
How does the CAS know someone is downloading illegally? The CCI's partnerscompanies that own and develop music, movies, and TV showsjoin 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, which 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 warn users that if they have an open system, they are at risk of facing mitigation. They then instruct users to protect their networks. Concerns about unintended consequences of the new policy include its effects on cafes and other semipublic Internet hot spots. Those places could wind up targets of ISPs if customers download copyrighted media, critics say.
"They're sending a message that you are responsible for everything that happens on your network," McSherry says. "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."