As SOPA and PIPA stall in Congress, entertainment industry seeks to take matters into its own hands

Perhaps due to the shelving of the controversial SOPA and PIPA bills in the US Senate and House of Representatives respectively, the Motion Picture Association of America (MPAA) and the Recording Industry Association of America (RIAA) have acted on their own to coordinate with Internet Service Providers (ISPs) to crack down on Internet piracy. Beginning on July 1, participating ISPs will adopt a “Graduated Response” system, with the ultimate goal of “educating” first-time offenders and penalize those who continue to share files illegally. The program, also known as the “six strikes” system, begins with e-mail warnings and can end with the loss of service. The process looks something like this:

If a copyright holder—for example, a record company—discovers a file sharing site or system that it believes to be illegal, it will notify the ISPs participating in the program. Those ISPs will then identify the accounts associated with the activity and initiate a tiered series of warnings and, eventually, penalties.

The first two “strikes” result in written warnings, usually via email, sent to alleged downloaders by their ISPs. The warnings include references to “educational resources” intended to assist users in securing their computers, wireless networks, and Internet accounts. The warnings also include information about copyright infringement and links to multiple sources of legal content.

The consequences escalate after the third incident. If a user is associated with a copyright violation for a third time, the ISP will employ a more “conspicuous” method of warning the user. Such methods may include a pop-up window, or diverting users to a warning page when they first load their browser. The user must acknowledge having read the warning before they will be permitted to use the Internet as normal. The fourth strike is handled in a similar fashion.

The fifth warning is accompanied by “mitigation measures” that may include bandwidth throttling, a tactic ISPs can use to reduce a user’s connection speed. Or, the ISP may redirect the user’s browser to another warning page; this time, the user would have to contact the ISP in order to restore normal service. (Think of it like a wheel clamp applied to a car for a parking violation.) The mitigation measures will remain largely at the discretion of individual ISPs.

The sixth and final warning could result in a full suspension of the user’s account. In addition, the user may be sued under the controversial Digital Millennium Copyright Act.

The organization responsible for administering the system—a group known as the Center for Copyright Information (CCI)—was established jointly by the entertainment and ISP industries. They do not expect many users to fall into the “sixth strike” category; they believe, rather, that a substantial proportion of copyright infringers simply do not know that their activities are illegal.

As the article points out, the CCI is a private organization with no apparent oversight. While the CCI includes an advisory committee meant to represent consumer interests, the article observes that it appears to be “mostly ornamental.” The bottom line is that copyright holders can accuse users of infringement, and ISPs can levy penalties against those users, all without needing to confirm any actual wrongdoing.

Users who feel they’ve been incorrectly penalized—for example, if their wireless connection was used to download files illegally without their knowledge—can file an appeal with the CCI, for a fee of $35, refundable in the event of a decision in the user’s favor. It is not clear who will be given the responsibility of handling appeals, but it seems likely that they will be somehow associated with the copyright holders. As the article put it, the system is an improvement over the strong-arm tactics employed by the RIAA and MPAA in the past; but clearly, the “system is rigged in favor of the copyright industry.”

Several major ISPs intend to participate in the program, including AT&T, Time Warner Cable, Comcast, Verizon, and Cablevision.

The full report from Digital Trends can be found here.

If the six-strike system is widely adopted—and that appears to be a very real possibility—the implications even for ordinary users are worrisome. If a user is wrongly accused of copyright infringement, he or she could nonetheless suffer disruptions in Internet service for which they’ve paid, even be slapped with a lawsuit, because of someone else’s mistake. To make matters worse, neither the CCI nor the entertainment industry are subject to oversight; they suffer no apparent consequences if they wrongly penalize a user.

More clarity is needed on the legal rights and obligations of individual users; likewise, the rights and obligations of copyright holders need to be more carefully and definitively circumscribed. Unfortunately, if the result of Congressional intervention is to assume the form of bills like SOPA and PIPA, the deck may remain stacked against consumers. If you’ve been accused of illegal file sharing, you’ll need an experienced attorney to protect your rights and help you navigate the intricacies of Internet law.

Leave a Reply

Your email address will not be published. Required fields are marked *