‘Graduated response plans’ are geared towards fighting illegal online file sharing and have been implemented over the past two and a half years in France, New Zealand, and South Korea. The United Kingdom and Ireland are currently in the process of locking down similar programs. These plans involve systems by which Internet service providers (ISPs) link illegal activity to an IP address and account and send the identified user a series of alerts leading to varying consequences.
Abroad, these programs take the form of laws or legal procedures. As yet, in the U.S. they have not. In fact, there has been a strong and negative reaction to the SOPA and PIPA bills that content providers supported and this has put lawmakers on the defensive. Content providers are now seeking informal agreements to protect their interests.
The Center for Copyright Information
Recently, they obtained approval from AT&T, Cablevison, Comcast, Time Warner Cable and Verizon to consider building a Center for Copyright Information (CCI). On March 14th, Cary Sherman, CEO of the Recording Industry Association of America, and Fritz Attaway, EVP of the Motion Pictures Association of America, told the annual meeting of the Association of American Publishers that U.S. ISPs are now poised to initiate, by early July, a “Copyright Alert System”. The program had been penned a year earlier and, given the progress now made with the CCI, Sherman presented the initiative as potentially the most effective online anti-piracy effort to date
Here’s how it would work. ISPs will issue approximately six warnings to users who download pirated media. Each ISP will have the flexibility to design their own plan under the following guidelines:
-When copyright holders discover that their content has been illegally downloaded, they will report it to the participating ISPs. By referencing IP addresses, the ISPs will identify the account linked to the infringement and send out a first alert. According to the CCI’s website, the nature of these alert will be both educational and deterring.i
-The first and second alerts will likely come via email and will state that the user’s current account “may have been misused for the distribution of copyrighted content”. It will recommend legal options for obtaining media and offer advice on appropriate computer protection.
-The third and fourth alerts will make use of a more conspicuous format such as a landing page or pop-up window. The user will be forced to clearly acknowledge that they have seen the alert and the message will reiterate the consequences of illegal file sharing.
-For the fifth and six alerts, there would be “mitigation measures”.
The ISPs will have options to implement penalties. After Sherman’s announcement in March, rumors circulated that the ISPs would take the user offline by strike six. But, the CCI website clearly states that the “alert system does not, in any circumstance, require the ISP to terminate a subscriber account.” It also does not say that the ISPs cannot terminate a subscriber account. The ambiguity is intentional, for ISPs don’t want to commit to taking subscribers off if they can avoid it; they don’t, however, wish to spell out what they might do, partly because they don’t have a full answer right now.
The ISP will have the power to decide what to do after issuing four alerts. Options include slowing Internet speed and redirecting users to a landing page until he or she either contacts the service to discuss the matter or reviews and responds to some educational information about copyright.ii The ISP also has the choice to notify the copyright holder who can then file a lawsuit.
The CCI designated its key members on April 2, 2012, including an executive director, an advisory board, and use of the American Arbitration Association to oversee what the CCI calls the Independent Consumer Review Process. iii
Jill Lesser will serve as Executive Director and is the managing director of The Glover Park Group, a public policy and lobbying firm. Lesser is also a member of the board at the Center for Democracy and Technology, a nonprofit group that advocates for free speech on the Web. She was Director of the Civic Media Project at People for the American Way and Senior VP for Domestic Public Policy at AOL Time Warner, Inc. Lesser was appointed by Thomas Dailey, Chairman of the CCI’s Executive Board and Vice President and Deputy General Counsel of Verizon Communications, Inc.
CCI’s board consists of top executives from RIAA, MPAA, Comcast, Viacom and AT&T. The newly formed Advisory Board will consult with the board about the Copyright Alert System’s design and implementation. Its member make-up could suggest a precautionary gesture to minimize the type of aggressive opposition that flared up in response to SOPA and PIPA. It includes an internationally recognized communications attorney and leaders from the following organizations: Public Knowledge, Internet Education Foundation, iKeepSafe.org, and Future of Privacy Forum. These voices, it could be argued, will also help protect the interests of the ISPs.
In addition, the American Arbitration Association, a conflict management organization, will review disputes that arise between the CCI and Internet users who believe they are being wrongly accused. This is important because under the Copyright Alert System, suspects are considered guilty until proven innocent.
The CCI claims that there is data predicting that most users will never go far enough in the alert system for mitigation measures to become necessary. The team expects subscribers to stop illegal file sharing after a few alerts.
The French Case
This is supported by international practice. France’s President Sarkozy recently made an official statement hailing the success of his graduated response regime. iv In 2009, the French government passed a law called HADOPI. It outlines a three-strike procedure that is similar to the CCI’s Copyright Alert System but different in that the third strike requires ISPs to suspend subscriptions between two months and one year while still collecting fees. The account holder’s name is also blacklisted and other ISPs are prohibited from providing Internet to the user.
The HADOPI office recently released a report spanning from October 2010 to December 2011 showing a significant decrease in online piracy and “a clear downward trend in illegal P2P (peer to peer) downloads.”v The study shows that 95% of users who receive a first notice never received a second. 92% of those who received two notices never receive a third. 98% of users who received a third notice were not reported thereafter for illegal behavior within the time frame set out by the law. The data was collected by the French Rights Protection Commission’s Information System and is based on about 750,000 records of subscribers that received at least one notice.
While the report in France reflects a substantial decline in illegal file sharing, legal media sales did not pick up. There was another factor to consider: the shutdown of Megaupload could have had negative effects on file sharing. Still, illegal online file sharing seems to be declining in France.
Over the past year, some bloggers and journalists have exaggerated the nature of the U.S. plan, branding the ISPs as “copyright cops” or “big brother”. Some compared them to telephone networks and questioned what would happen if phone companies policed their subscribers’ conversations for illegal activity. The truth is that the ISPs are really just babysitting content. They are not responsible for policing their users’ downloading habits; this would go directly against the laws in the Digital Millennium Copyright Act. No legislation is being rewritten. The content providers who own media rights are in charge of catching infringers. After years of trying, they found the right pressure points and finally convinced the ISPs to back them up.
Those pressure points probably sit on Capitol Hill. When the deal was first announced last July, U.S. Intellectual Property Enforcement Coordinator Victoria Espine publicized the Administration’s support for the program on the official White House blog. Her expectation is that the CCI will consult regularly with “privacy and freedom of expression advocacy groups,” evidently a condition to appease the ISPs and opponents of the plan.vi
Crucial details still need to be worked out. The ISPs are not empowered to implement penalties similar to HADOPI. It is unclear that they will suspend service after strike six. Moreover, ISPs have little incentive to act in the best long-run interest of the creative community. In France, for instance, the government became a feared arbiter in the service of content owners and creators; by contrast, the Federal Government has stayed out of the fray after the failure of the SOPA and PIPA bills.
Users of content will continue taking risks with file sharing sites. As long as ISPs are perceived to be docile caretakers of copyrighted materials and the U.S. government is unprepared to enforce tougher measures against infringers, the only hope for content providers will be the possibility of pursuing their own cases in court with better cooperation from the ISPs.
By Emilie Bogrand
i. “Frequently Asked Questions,” The Center for Copyright Information, accessed April 5, 2012,http://www.copyrightin- formation.org/faq.
iii. “Center for Copyright Information Announces Three Major Steps Towards Implementation,” Press Release, The Center for Copyright Information, accessed April 5, 2012, http:// www.copyrightinformation.org/node/705.
iv. “L’Hadopi Se Félicite Des Chiffres Encourageants Présentés Par L’IFPI,” Press Release, The Hadopi office, January 23, 2012, http://www.hadopi.fr/sites/default/files/page/ pdf/20122301_Hadopi_CP_.pdf.
vi. “Hadopi, 1 1⁄2 Year After The Launch,” Report by The Hadopi office, Accessed April 5, 2012, http://www.scribd. com/doc/87387866/Hadopi-Report.
vii. Espinel, Victoria. “Working Together To Stop Online Piracy,” The White House Blog, July 7, 2011, http://www. whitehouse.gov/blog/2011/07/07/working-together-stop- internet-piracy.