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Internet service providers have assumed responsibility for policing customer copyright violations. Based on voluntary agreements with content owners, ISPs have agreed to crack down on illegal file sharing by disrupting service for suspected offenders. Previously, personal use copying was often litigated in the context of third-party liability (e.g., suits against Napster). Now, residential consumers who illegally download copyrighted movies or music may be punished directly for their wayward conduct.
This plan arose from secret negotiations between Hollywood, the music industry, and ISPs. Obama’s copyright czar and other government officials also played a behind-the-scenes role in brokering the deal. These parties may seem like strange bedfellows, but their clandestine negotiations resulted in a fairly innovative approach to digital piracy.
The punishments are actually rather apropos – after several warnings, “mitigation measures” commence. These include reducing internet speed and redirecting service to an educational landing page, while the “graduated response” may result in complete loss of service. The craftsmen of the plan allowed for these deprivations because moral suasion is not always enough; sometimes you just have to take the toy away.
This is a stroke of punishment brilliance – the frustration of sluggish internet is the perfect deterrent for individuals who engage in file sharing. Clearly these are people who value the many splendors of the internet, so this type of punishment might prove to be quite effective. If the ultimate goal is to deter online piracy, even the threat of internet loss may discourage potential infringers.
Still, opponents argue that it is wrong to penalize subscribers based on allegations that have not been tested in court. The way the system works is that the content industry monitors P2P networks for infringement and informs ISPs of the IP addresses of suspected infringers. ISPs then match the IP address to the subscriber. However, customers could receive notices of allegations without actually engaging in illegal downloading. This might occur if other people use their connection or if the monitoring company makes a mistake.
Another concern is whether agreements between for-profit parties are really the best mechanism for enforcing copyright law. Is “internet cop” an appropriate role for the ISPs to play? Under the Digital Millennium Copyright Act (PDF), an ISP must have a termination policy for repeat offenders if it wishes to remain eligible for certain “safe harbor” provisions. Additionally, this is not just a U.S. phenomenon – a recent internet conference in Paris also promoted cooperative efforts to address illegal activity.
Given this statutory and international support, the question remaining is what role the administration and our courts should play in the implementation of this plan. Concerns center on the fact that ISPs can take away a necessity of modern life, purely on the basis of alleged infringement. These punishments are backed by the government, but they are extra-judicial and do not offer the protections of a court. Would additional government oversight alleviate these concerns? If we are worried about commercial entities exercising this kind of power, is it practical instead for content owners to litigate against individual infringers?
Perhaps the biggest elephant in the room is that ISPs are decidedly not at the top of the public favor heap, and now they are playing the role of Big Brother. Consumers know they may have to answer for their copyright offenses in a court of law. Should they also have to answer to Comcast for their internet indiscretions?
– Joanna Collins
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