Six Strikes And You’re Out: The Copyright Alert System Begins This Week

by Gray Reed & McGraw

The movie industry, the music industry and five major internet service providers, with some input from the White House, quietly got together in 2011 and came up with a system that would allow the ISPs to notify individual customers they were engaged in illegal peer-to-peer file sharing in violation of copyright laws.  With equally low key fanfare, the Copyright Alert System went into effect this week.

Under the new system, copyright owners will notify ISPs of suspected violations.  The first of the alleged six strikes is supposed to be an email from the ISP to the customer notifying the customer of the illegal act and providing the customer with information about illegal file sharing.  With each strike, the ISP’s action will increase from requiring the customer to acknowledge receipt of the inquiry to eventually temporarily slowing their connection or redirecting Internet traffic until they acknowledge they received a notice or review educational materials about copyright law.  Consumers who believe they are innocent can pay $35 to appeal the decision and recover the fee if they win.

You can read more about the proposal here.  You can also listen to my KRLD Interview with Mitch Carr

Here is the innocuously-named Copyright Information Center’s video about the program.

The Pros

This new system will allow innocent victims to take corrective actions. If I had an open wireless signal that an unscrupulous neighbor was using to download pirated porn, I would rather find out this way.  It’s better than being hit with a lawsuit naming me as an aficionado of porn. The same would hold true if my kids downloaded pirated movies or music.

Although getting throttled would be bothersome, the ISP’s refused to automatically disconnect customers after their sixth strike according to this CNet article.

There was initially some privacy concern that content owners would be watching what we are watching and that ISPs would share that information. As explained in the video, that does not appear to be the case

The Cons

This will be ineffective against the blatant offenders. You can disguise your IP address, use a public wireless and never be caught up in this system. David Zax calls the system “toothless” on the MIT Technology Review.

There is concern about the lack of transparency in the development of this system with a desire for transparency with its implementation. There are no judicial or administrative oversight or due process protections. The Copyright Information Center says they will be transparent and provide reports about notices that get sent out.

Finally, the DMCA already allowed ISPs to disconnect service to egregious violators. While disconnect is not officially part of the CAS, it can still be done. Also, there is nothing to prevent a lawsuit. This is not “law” and does not change existing copyright law. It is simply an agreed-upon system between ISP’s and the entertainment industry.  If they would prefer to sue, the copyright owner can still sue.  For the copyright owner, however, it is a better PR maneuver than suing grandmas for hundreds of thousands of dollars like in the post-Napster mid 2000's. 

So What Should You Do?

Pay attention. If you get an alert – figure out why. It may be one of those blessings in disguise. For more on what to do, read here.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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