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.