Six Strikes And Some Annoyance May Ensue

Copyright is a form of legal protection affixed to original works of authorship fixed in any tangible medium of expression. The Copyright Act of 1976 broadly defined “any medium of expression” as one “now known or later developed.” The advancement of technology has progressed in such a rapid and drastic manner that a myriad of new mediums have developed since the Copyright Act was first drafted. In an effort to address growing concerns regarding copyright enforcement in these developing mediums, the Digital Millennium Copyright Act (DMCA) was enacted in 1998. http://www.copyright.gov/help/faq/faq-general.html#what.

Structurally, the DMCA is divided into five different titles. However, the DMCA is best known for the provisions found in Title I and Title II. As such, I will exclusively focus on the substance of Title I and Title II in this blog entry. Title I can be broken down into two major parts. The first part, Section 102, implements the World Intellectual Property Organization Copyright Treaty and the World Intellectual Property Organization Performances and Phonograms Treaty (WIPO Treaties). Section 102 amends the Copyright Act by extending the protection of U.S. copyright law to works required to be protected by the WIPO Treaties; i.e. certain works from other member countries of the WIPO Treaties. The second part, Section 103, implements what is most often referred to as the anti-circumvention provision. This provision prohibits persons from manufacturing, importing, or trafficking any technology, product, or service that is primarily designed or produced to circumvent technological measures used by copyright owners to protect their works (e.g., copy-protection systems and encryption systems). http://everything2.com/title/DMCA%253A+Title+I.

Title II, the Online Copyright Infringement Liability Limitation Act, implements what is most often referred to as the “safe harbor” provision. This provision exempts qualifying online service providers from claims of copyright infringement, stemming from the alleged actions of their customers. The Act defines a service provider as “an entity offering transmission, routing, or providing connections for digital online communications, between or among points specified by a user, of material of the user’s choosing, without modification to the content of the material as sent or received” or “a provider of online services or network access, or the operator of facilities thereof.” To qualify for protection under the safe harbor provision, a service provider must first satisfy a host of requirements. Title II’s most notable requirement is the notice-and-takedown requirement. This provision requires online service providers to respond “expeditiously to remove, or disable access to, the material that is claimed to be infringing.” In order to have copyright infringing material taken down, a copyright owner must specifically indicate the infringing material to the online service provider. The notice-and-takedown provision acts to incentivize online service providers to quickly remove or block copyright material, so as to protect themselves from any future claims of copyright infringement. http://everything2.com/title/DMCA%253A+Title+II.

Given the basic workings of Title I and Title II of the DMCA, it is no surprise that copyright holders and internet service providers (ISPs) have begun to work with each other to address the growing problem of online piracy. The Copyright Alert System (CAS), more commonly referred to as the “Six Strike” program, launched this past February. The CAS is not a government-run program. The alert system is the creation of the Center for Copyright Information (CCI) – a private group comprised of media corporations and participating ISPs. Currently, Comcast, Time Warner Cable, AT&T, Cablevision and Verizon are the five major ISPs participating in the CAS. Copyright owners will work with these ISPs to educate copyright infringing customers about copyright law. http://mashable.com/2013/02/27/isps-six-strikes/.

The basic concept of the CAS is fairly straightforward. Content owners join public peer-to-peer networks to detect the illegal file sharing of copyrighted material. Once a content owner detects the illegal sharing of copyrighted material, it is able to identify the Internet Protocol (IP address) of the infringing user. The content owner can then identify the ISP associated with infringing user’s IP address. The content owner will then contact the corresponding ISP and inform them of the infringing user’s activities. The ISP will then alert the customer, notifying them that illegal file sharing was detected. The exact content/consequence of each alert varies, depending on the procedure each respective ISP decides to implement. However, the notifications can be divided into three general categories: education, acknowledgment, and mitigation. Educational alerts may notify infringing customers that they are engaging in illegal file sharing, and provide users with instructional videos regarding U.S. copyright law. Acknowledgement alerts may require customers to acknowledge that they were notified of their infringing actions. Repeat offenders, on their fifth or sixth strike, may be subject to certain mitigation measures. Depending on the ISP, a customer may have their bandwidth temporarily throttled (capping internet speed) or temporary internet service disconnection. http://www.copyrightinformation.org/the-copyright-alert-system/what-is-a-copyright-alert/.

Under the current framework of the CAS, ISPs have discretion to choose what mitigation measures they decide to employ with each alert. At the moment, Cablevision is the only ISP that will automatically suspend internet service; if the fifth and sixth alerts go unchallenged, Cablevision will suspend internet service for 24 hours. http://optimum.custhelp.com/app/answers/detail/a_id/3592/kw/copyright. Moreover, Verizon is the only ISP that will throttle the bandwidth of repeat offenders. Verizon will institute “temporary internet speed reductions of 2 or 3 days for customers who receive at least 5 alerts.” http://publicpolicy.verizon.com/blog/entry/copyright-alert-system-what-users-need-to-know. Time Warner Cable’s mitigation measure, as stated in its Terms and Conditions page, redirects customers “to a landing page until the subscriber contacts TWC.” http://help.twcable.com/twc_security_abuse.html. Comcast has decided to “place a persistent alert in any web browser under that account until the account holder contacts Comcast’s Customer Security Assurance professionals to discuss and help resolve the matter.” http://customer.comcast.com/help-and-support/internet/mitigation-measures. Lastly, AT&T will require repeat offenders to “to take an extra step to review materials on an online portal that will educate them on the distribution of copyrighted content online.” http://thenextweb.com/insider/2013/02/26/as-six-strikes-commences-att-promises-to-never-slow-customer-connections-over-copyright-violations/.

At first blush, this system may seem to be rather intrusive. However, it is important to note that the participating ISPs will not disclose the identity of customers to content owners unless there is a properly issued subpoena or court order. A user’s IP address is visible on a peer-to-peer network, so the content owners’ initial acquirement of an infringer’s IP address is not much of a privacy intrusion.

Moreover, the scope of surveillance under the CAS is surprisingly limited. Under the CAS, content owners only monitor public peer-to-peer networks. Meaning, content owners exclusively monitor public BitTorrent trackers. The CAS will not monitor private BitTorrent trackers (invite-only), the streaming of copyrighted material, or file sharing through online file lockers (e.g., MediaFire, SendSpace, RapidShare). The illegal file sharing of copyrighted material through these alternative methods are still, of course, subject to the heavy hand of the DMCA.

Given the limited nature of the CAS, its effectiveness in deterring copyright infringement remains unclear. The CAS, as currently constructed, certainly creates minor annoyances to copyright infringers, but are these annoyances enough to significantly reduce infringement? Individuals set on their pirating ways are likely savvy enough to use appropriate backchannels to avoid detection. However, MarkMonitor, an anti-piracy firm working with RIAA and MPAA members estimates that it detects 20-30 million infringements over public peer-to-peer networks every day. http://www.forbes.com/sites/kashmirhill/2013/02/25/copyright-alert-system/. Under the CAS, the users that are responsible for these infringements will be notified that they have partaken in illegal file sharing, and will be told to stop engaging in such illegal activities. Simply notifying the infringing user that he/she has been caught doing something illegal, and destroying any semblance of privacy, may be enough to deter a significant amount of individuals from continuing to pirate copyrighted material.

In 2010, similar copyright infringement measures were implemented in France. However, one significant difference between the CAS and France’s measure is the fact that the CAS is privately run, whereas France’s system was government run. France created an entirely new government agency, HADOPI, to prevent the illegal file sharing of copyrighted material. HADOPI implemented a “three strikes” system, where the infringer would be warned for their first two violations, and would be required to go before a judge for the third violation. The judge had the power to require the infringer’s ISP to disconnect service. https://www.eff.org/deeplinks/2012/09/french-anti-piracy-law-claims-first-victim-convicted-failing-secure-his-internet.

On July 9, 2013, France abolished the “three strikes” system, replacing it with a graduated fine system. The three strikes system was criticized as being expensive and highly ineffective. French Minister of Culture, Aurélie Filippetti, stated, “In financial terms, [spending] €12 million euros ($14.86 million) and 60 agents—that’s expensive [just] to send a million e-mails.” http://arstechnica.com/tech-policy/2012/09/french-anti-piracy-agency-hadopi-only-sued-14-people-in-20-months/. To show for the millions of tax dollars spent over the course of its three-year existence, the program lead to only one individual’s internet being disconnected. http://www.theguardian.com/technology/2013/jul/09/france-hadopi-law-anti-piracy.

While HADOPI may have been ineffective in terms of ultimately leading to the disconnection of individuals’ internet services, one is left to wonder if this is actually indicative of the program’s effectiveness. If the purpose of the program was to deter first time offenders from receiving a second and third strike, an argument could be made that HADOPI served its purpose. As of September 2012, HADOPI had sent approximately 1.15 million phase one warning letters. Of those phase one warning letters, only 102,854 had to be followed up with phase two letters. Of those phase two letters, only 340 had to be followed up with phase three letters. http://arstechnica.com/tech-policy/2012/09/french-anti-piracy-agency-hadopi-only-sued-14-people-in-20-months/.

I believe the privately-run aspect of the CAS works in the system’s favor. It is an imperfect system, but it is a privately financed system, that can be as bloated and costly as it so chooses. HADOPI spent tax dollars and, thus, the efficiency of the program was determined by the opinion of the public. Members of the CCI, on the other hand, can determine for themselves how they will evaluate success. Going forward, it will be interesting to see if the members of the CCI determine the CAS to be a cost-effective system.

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~ by cpellecer on September 29, 2013.

12 Responses to “Six Strikes And Some Annoyance May Ensue”

  1. When looking at the efficiency of the CAS system (and comparing the now defunct French HADOPI), what is important to note is the lengths that users will go through in order to remain undetected. The mere fact that fewer users got a second or third warning does not in itself guarantee that a million people quit downloading illegal material. Rather, it is far more likely that those users (or at least a majority) became more knowledgeable about detection and evasion.
    One such example is the Virtual Private Network (VPN), which provides state of the art, multi-layered security with advanced privacy protection using VPN tunneling. (London Trust Media, Inc., Private Internet Access: How it works, https://www.privateinternetaccess.com/pages/about-us/ (last visited Sept. 30, 2013)). Not unsurprisingly, these systems are marketed towards users who are based in the US, UK and France. The layers of security provided to the consumers in these countries who wish to consume copyrighted material undetected include: IP cloaking, encryption and uncensored access. IP cloaking works by masking the user’s true IP address with one of their “anonymous IP addresses,” in order to evade the service provider from monitoring your browsing habits and your true geographic location. The uncensored access service works to bypass censorships and firewalls put up by your ISP.
    With the proliferation of VPN and other cloaking devices, this makes the discussion as to the validity and success of the Six Strike System even more complicated. If the true aims of the system are educating and stopping copyright infringers, any assessment of the effectiveness of the system must take into account how rapidly criminality evolves.

    • This is a great point Heather. I think we both personally know some people that use VPN’s to mask their IP. Although I do think that there is still a very small number of people that know about (or at least how) to employ this type of technology.

  2. Hkruzyk highlights the theme that makes virtual criminal law a thriving entity: Our government functions in such a way that criminals are able evolve their conduct quicker than the law can address it. With technology moving at a screaming pace, this principle is only exaggerated further.

    But what makes the Copyright Alert System (CAS) unique is that it is an effort by private entities, not the government, to limit online piracy. This means that, as Professor Derek Bambauer explains, the consuming public, whom the CAS seeks to “govern”, was not privy to the construction of the CAS and therefore was not provided with a forum where the interests of the public could be heard. The CAS is funded by the CCI, which is made up of five major Internet Service Providers, the Motion Picture Association of America, and the Recording Industry Association of America. These entities have incentives to limit free-speech as much as possible. This means that the legalities asserted in the CAS are not necessarily sound. See for example Comcast Alert #1, alleging improper use of the internet service. But as Bambauer explains, vaguely asserting “improper” use is not necessarily accurate: ““Making a fair use of a copyrighted work is not infringement. Thus, even if I download an entire copy, if it’s fair use, I am not an infringer—and yet, the private law of six strikes treats me as one.”
    Hkruzyk highlights the theme that makes virtual criminal law a thriving entity: Our government functions in such a way that criminals are able evolve their conduct quicker than the law can address it. With technology moving at a screaming pace, this principle is only exaggerated further.
    But what makes the Copyright Alert System (CAS) unique is that it is an effort by private entities, not the government, to limit online piracy. This means that, as Professor Derek Bambauer explains, the consuming public, whom the CAS seeks to “govern”, was not privy to the construction of the CAS and therefore was not provided with a forum where the interests of the public could be heard. The CAS is funded by the CCI, which is made up of five major Internet Service Providers, the Motion Picture Association of America, and the Recording Industry Association of America. These entities have incentives to limit free-speech as much as possible. This means that the legalities asserted in the CAS are not necessarily sound. See for example Comcast Alert #1, alleging improper use of the internet service. But as Bambauer explains, vaguely asserting “improper” use is not necessarily accurate: ““Making a fair use of a copyrighted work is not infringement. Thus, even if I download an entire copy, if it’s fair use, I am not an infringer—and yet, the private law of six strikes treats me as one.”

    http://arstechnica.com/tech-policy/2013/02/heres-what-an-actual-six-strikes-copyright-alert-looks-like/

    • CORRECTED VERSION*

      Hkruzyk highlights the theme that makes virtual criminal law a thriving entity: Our government functions in such a way that criminals are able evolve their conduct quicker than the law can address it. With technology moving at a screaming pace, this principle is only exaggerated further.

      But what makes the Copyright Alert System (CAS) unique is that it is an effort by private entities, not the government, to limit online piracy. This means that, as Professor Derek Bambauer explains, the consuming public, whom the CAS seeks to “govern”, was not privy to the construction of the CAS and therefore was not provided with a forum where the interests of the public could be heard. The CAS is funded by the CCI, which is made up of five major Internet Service Providers, the Motion Picture Association of America, and the Recording Industry Association of America. These entities have incentives to limit free-speech as much as possible. This means that the legalities asserted in the CAS are not necessarily sound. See for example Comcast Alert #1, alleging improper use of the internet service. But as Bambauer explains, vaguely asserting “improper” use is not necessarily accurate: ““Making a fair use of a copyrighted work is not infringement. Thus, even if I download an entire copy, if it’s fair use, I am not an infringer—and yet, the private law of six strikes treats me as one.”

      http://arstechnica.com/tech-policy/2013/02/heres-what-an-actual-six-strikes-copyright-alert-looks-like/

  3. Very thorough post, Cpellecer! I think CAS is a great idea and it only makes sense to have it funded privately. The big media companies who are running it own the material they are trying to protect. They have all the incentive in the world to make the program effective, while still balancing the privacy and interests of the IP holders. If these companies get out of hand and start really digging into the privacy of internet users, they would surely face backlash on the front end of their business: upsetting the customers buying their music, TV programs, and movies. I think the CAS lacks a little bit of teeth, however. The aim is to “educate” people who are infringing on copyrights. I’m pretty sure most everyone knows that downloading first-rate movies is illegal. It is more likely that the first 5 strikes will only educate the infringers on how to pirate more secretively, like using the other technologies you mentioned in your post. Maybe the government could team-up with the CAS system and somehow streamline the prosecution of infringers who don’t respond well to the first 6 strikes.

  4. The CAS presents a very interesting, possibly effective, regulatory model. I like the idea of copyright holders doing the leg work to protect their content. I am not as concerned as some of my classmates about the lack of teeth in law, precisely because it is private sector collaborative effort. In almost every enabling statute for a government regulatory agency there are procedures for challenging enforcement decisions and they are generally subject to judicial review. In contrast, as an internet customer you are essentially at the mercy of the effectiveness of the individual internet service provider’s review procedures. From what I have read it appears to be unclear on how precisely you would challenge determinations of what is an “improper” use. The CAS’s lack of tough enforcement mechanism reduces the possible negative effects of this experiment on those mistakenly identified. I agree with Drew that the government may at some point may need team up is the CAS. However, this should only be done after the CAS has convincingly proving that it can successfully identify those that have actually violated copyright law and those who have not.

  5. I think the CAS is a great attempt at limiting the downloading of copyrighted material. In the past I may or may not have downloaded music illegally off the internet. I know if I got a message like the CAS one that I had been caught it would scare the crap out of me and I would stop right away and delete all my downloaded music. I’d also like to echo some of Drew’s sentiments. I think the CAS does lack some teeth and eventually a government program could be implemented that would be a lot more effective. At the very least the CAS signals the end of the “wild west” era of the internet.

  6. I think that the incentive to limit the downloading of copyrighted material is what will drive progress. This is where I think the CAS got it right- with putting the burden on those with the most incentive. However, I worry that we will end up like the French- annoyed and looking for a better solution in a few years. Who is to say that six strikes would be any better than three? And while we elect the government to regulate us, this private sector doesn’t have to answer to the public. I think someone brought up fair use in the earlier comments, and it really dawned on me that even if I am using something fairly, I could be punished under six strikes? This doesn’t seem fair. While the incentive is high for those who are making money off the content, and I do believe that to ask them to help protect their own content, I have a fear that the law will be ineffective or misguided. Piggybacking off of Drew, I think that my fears subside when I realize the lack of “teeth” in this law. The law seems to be enforcement-thin, and the reality of getting people in trouble for the strikes seems unlikely. Again referring to the French model, I wonder if a series of increasing fines might not be more enforceable. EIther way, I have to commend the effort that the CAS makes to regulate online piracy.

  7. The problem with copyright violation really happens on two levels. At the first instance we have the regular consumer who illegally downloads. This person ordinarily is either downloading without the knowledge that the act is illegal or taking a fairly nonchalant approach to something he or she may know is wrong. The CAS may actually prove useful in educating an individual of this type. Perhaps the knowledge that it is possible for their behavior to be monitored may discourage them from downloading in the future. And I agree that it is fine for the entities with the most interest in protecting the content to shoulder the burden for the costs of the monitoring. We do need to be vigilant however for the potential for abuse or inaccuracy in the identification of conduct which might be characterized as a strike.

    The second level involves individuals who are bent on circumventing the law, knowing that their conduct is illegal and intending to profit off of that illegal conduct. The CAS does nothing to impact this offender. As Heather points out there are many ways to avoid falling with the public BitTorrent. As the French experiment showed, it is difficult even for government to address the problem. Since emerging technology paired with old understandings of intellectual property created the illegal downloading problem, I wonder whether technology can be developed to help resolve it? Of course, the law must do its part as well. The courts and Congress (well when it is working!) are struggling to develop a body of law that coherently deals with the issues at the intersection of technology and intellectual property.

  8. I think that rather than trying to scare consumers away from illegally downloading material, these companies should be adapting to our changing world and providing incentives to people to use legal channels to get their entertainment. It’s how things like Netflix and Spotify work, and more companies should embrace those models. For instance, movies come out months after they are in the theaters, but they are available for download almost as soon as or even before they hit theaters. Rather than force the public to wait, movie companies could release content on a schedule that was amenable to consumers. I realize this may come with a whole new bag of problems because licenses with HBO and other premium channels would have to be modified as a result of making content more accessible. I do know however that I and many of my friends have expressed an interest in paying for content but it simply has not been made available for consumption through channels that we can access.

  9. The CAS seems like a major farce to me. It may very well stop many people from engaging in copyright but that is likely only because they people become more educated — not about the ‘moral misgivings’ of infringing copyright but about the methods of kirting around the attempted policing; some of these simple and some more advanced. As other commenters have stated, there are too many people that simply subvert the system via proxies, vpns, subnet masks, seedboxes and various other techniques and most of these can be undertaken by people wiht only a realtively general understanding of the systems in place, and maybe a somewhat tech savvy friend. The HADOPI concept is much better than the CAS if only because it allows for 3 strikes as opposed to 6. Having that high a number of warnings or relatively minor penalites is patently ineffective. The 3 strike deal with the sure block would definitely thwart more people or infringing events, even if at least marginally so due to the above issues. Perhaps the private entities (the private nature being more advantageous by not burdening the public) would have been better off implementing the HADOPI system but ultimately the entire culture of downloading and filesharing needs to change before any real understanding between consumers and creative producers can be reconciled.

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