July 7, 2011
ISPs To Get Involved in Copyright Enforcement
Various news outlets are reporting that major content providers have reached a voluntary agreement with major ISPs to police copyrights on their networks. The system takes the form of a six strikes rule where ISPs will send subscribers escalating email communication that alerts them to infringing activity on their accounts. Reports over the years indicate that ISPs were loathe to do this for fear of offending their subscribers, but got on board with a little push from the Obama administration. Still, past ISP reluctance is tempered by some of the details that makes their participation palatable.
It would still be up to content providers to police the sharing of their content. ISPs would not be in the traffic scanning business as part of this. Content holders would pass IP addresses to the ISP who would then contact the customer. The next steps range from educating the consumer about activity on their account all the way to "mitigation." That would take the form of throttling online speeds or sending subscribers to a landing page where the consumer would be further educated. Cutting off Internet and related services would not be an option. GigaOm has a copy of the official fact sheet on alerts document that gives the context and details for the escalating alerts.
The focus seems to be on educating the consumer to the evils of intellectual property theft with a bit of guilt thrown in by identifying the account as a source of questionable activity. I suppose this is a better approach than some crazed lawyer sending off a summons on the least possible verified facts. It has to be a bit less expensive for the content producers as lawyers usually cost more money than a losing defendant can pay, not to mention the public relations hit when someone's grandmother is hauled into court for allegedly downloading gay porn. Past practice by copyright holders and their representatives reeked more of extortion than enforcement. But now we are past that unless someone decides to sue anyway. The document that specifically says this is still an option.
The more nebulous part of the program is the section on independent review. A consumer has the ability to request an independent review before a mitigation measure is imposed. Review is based on circumstances that the activity is lawful or that the account was identified in error. That will cost $35 to avoid spurious claims which would tax the system, though the independent reviewer can waive the fee. These claims and defenses have been subject to rules of procedure and evidence when made in court. What standards will be used to review these claims outside of court? Will the outcomes be subject to binding precedent or will they even be precedent on their own. Will claimants be allowed to publicize the results from their cases? I guess I'm asking how open the process will be. One point in the document is that subscribers retain the right to challenge any action in a court of law. I question that statement after the recent Concepcion case where consumer contract arbitration clauses were found to be binding. I'm sure any Internet subscription contract issued from this point on will force these claims out of court entirely.
The fact that content providers are willing to try something that is less than their usual sledgehammer tactic is promising. The education spin on the tactic is nice even if it is a bit ingenuous. The program should stop some of the more casual forms of IP piracy. I do not believe it will stop the committed sharer in the least. The enforcement efforts in the past have focused on peer-to-peer sharing as these are the best way to yield trackable information. Streaming and one-click download sites are trending and these are less susceptible to easy identification of users, unless ISPs get involved. Then there is that Internet before there was an Internet: Usenet. Transactions there are even harder to track.
Good luck on that education effort, and when you get a chance, fill me in on the due process safeguards for the independent review. Oh, and what's the back up plan when it turns out the program doesn't produce a bump in CD, DVD and movie ticket sales? [MG]