Slow internet speed?  You may have only yourself to blame.

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

Image Source

7 Responses to There’s a New Sheriff in Town – ISPs Take on the Role of Internet Cop

  1. Janet says:

    This is only one of many international mechanisms put in place recently, many of which were negotiated in secret because they ultimately have an economic impact, and economy is one of the categories of that catchall, National Security.

    France already has a law, HADOPI, that requires ISPs to notify and shut down alleged copyright infringers. The entertainment industry associations have had ISPs send more than 650,000 notices to alleged infringers in the last 18 months.

    Canada is in the midst of passing new laws to criminalize alleged online infringement, and require ISPs and telcos to monitor, retain, and provide details all traffic to the government and/or police upon request.

    Europe is developing a piracy database to collect analyze disseminate data about infringements of intellectual property rights.

    The Anti Counterfeiting Trade Agreement requires these measures, and more, so these are just the beginning of international spying of all users — typically justified by authorities who create these measures as a way to protect against terrorists and pedophiles.

    The Occupy movement claims the banks are the problem. Perhaps the governments of our ‘democratic’ nations are at least equally problematic.

  2. Joanna Collins says:

    That is really a great point – I had not considered that. Additionally, ISPs have an interest in qualifying for the safe harbors provided for in the Digital Millennium Copyright Act, but can only do so if they fulfill certain obligations regarding infringing material. Those two factors certainly militate against a conclusion that ISPs are not sufficiently incentivized to perform this role.

  3. Kelly Donley says:

    Perhaps there are some shared interests now that ISPs are becoming content owners (or part of a parent company with media ownership).

  4. Joanna Collins says:

    Katherine, your post raises a number of good points. Thanks for your post!

    What I find questionable is how behind-the-scenes the government’s involvement was – the way I understand the situation, it was not until a sunshine request uncovered internal White House emails that people were aware of the role of government officials in these negotiations. This gives the impression that, because Congress was unable to pass a statute conferring this authority onto the federal government, the administration decided to simply implement its agenda through the ISPs. If it is, in fact, the government serving as puppetmaster in this plan, it seems as though the possibility of judicial review is in order. However, since it is a private company carrying out the plan (albeit at the urging of the government), there is less opportunity for oversight.

    Nevertheless, I agree that ISPs are in a better position than the government to execute this plan. I do wonder, though, if this is a conflict of interest – the ISPs, which presumably operate on standard business principles, are really going to cut off service to paying customers?

  5. Katharine Skinner says:

    Joanna, this is a really interesting article. The industries made a smart move by stopping illegal file sharing at the source, rather than having to expend substantial resources battling the issue in court. To your point about whether or not government oversight is needed, I wonder how feasible that would actually be at this point in time. It seems that one reason why private companies might have taken the initiative to create this deal is because Congress is having trouble passing a statute that would grant similar authority to the federal government. The “Protect IP Act”, heavily supported by the entertainment-industry, would give the Justice Department the power to go after infringing websites and obtain court orders seizing the websites’ domain names, among other things. After passing through the Senate Judiciary Committee, a senator placed a hold on the Act to prevent it from reaching the Senate floor, stating that giving control of the internet to the government, or private corporations, would harm not only the economy, but innovation. Due to heavy opposition, it might be difficult for the government to get involved with the issue at the moment. But it is possible that this could change in the future, especially depending on how successful these companies are in executing their plan. From the industry perspective, there are pros and cons to both their private deal and the PIPA (if it passes). While the private deal can target more individual infringers, rather than an infringing website as a whole, companies still may ultimately have to take the infringers to court, while under PIPA the federal government could directly shut down infringing websites themselves. On balance, I’m not sure which would be better for the industries in the long run, but for the moment this deal looks like a good start to solving their infringing problem.

  6. Joanna Collins says:

    Hunter, thank you for your interesting post. I agree with you that these new measures provide solutions to some of the earlier complaints. It seems as though the continued criticisms of these measures are formally valid, but probably functionally irrelevant. If an innocent Comcast user receives multiple warnings regarding suspected copyright violations, that individual has ample opportunity to contact the company and address the problem. I would be curious to know what exactly happens when a customer receives warnings in error – is there a way to resolve the problem simply by calling the ISP? I would like to know what the frequency of error is, as well as how much needless hassle it could cause an innocent customer. If the cost is, in reality, negligible, it might be worth it to continue these measures because of the great disincentive they provide for potential copyright infringers.

  7. Hunter Branstetter says:

    While this specific arrangement is a new development, Internet Service Providers throttling users suspected of file sharing is not a novel idea. In 2007, Comcast (among other ISPs) was embroiled in a controversy surrounding their use of traffic-shaping software. While Comcast initially denied any traffic shaping at all, the FCC initiated an investigation into Comcast’s practices and lawsuits were filed in CA alleging that Comcast was jamming certain types of traffic (their software was allegedly designed to disrupt peer-to-peer connections of the sort used by bittorrent clients). As Comcast stopped using rst-reset software and as file-sharers developed workarounds to avoid the throttling, the brouhaha died down by the end of 2008.

    Some of the chief complaints about the traffic-shaping methods in 2007 were that its implementation was clandestine, that the software was overly broad and aggressive, and that users were essentially being punished for data patterns that looked suspicious when there was no proof that they had done anything illegal.

    These new measures appear to address several of the chief complaints from 2007: they are explicit and users will receive warnings before harsher punishments are implemented. Nonetheless, the measures are still susceptible to the fundamental criticism that they punish users for their alleged activities without giving the users a chance to explain or defend their actions.