The public outcry concerning legislation like SOPAPIPA, ACTA, and  CISPA was unprecedented and, as far as some legislators and business interests were concerned, insurmountable. It seemed, for a moment at least, that the general public distrusted the legislature when it came to internet copyright enforcement legislation to such an extent that the mere mention of proposed legislation would spark a slew of blog posts and news reports with headlines like “The New SOPA.”

Any hope of a congressional piracy initiative in the short-term all but evaporated. The powerful lobbies funded by Hollywood and organizations like the RIAA, however, were not so easily discouraged. With a little help from the Obama administration and full complicity from most major internet service providers (including AT&T, Comcast, Time Warner, and Verizon), the media conglomerates crafted the “Copyright Alert System.” The “six-strike” plan, slated to be implemented by the major ISPs by year’s end, consists of an escalating progression of warnings and penalties directed toward customers suspected of repeated copyright infringement.

On the first strike, the user may receive an email from the ISP indicating that their account may have been involved in copyright infringement. The second strike will be similar to the first alert, but will focus instead on an “educational message” meant to dissuade a user from illegally sharing files online. On the third and fourth strikes the ISP will utilize some “conspicuous mechanism” such as a pop-up window by which the user must explicitly acknowledge receipt. This strike also has an informational component much like the second strike. On the fifth strike, ISPs may begin “throttling” internet speeds or alternatively force the user to contact the ISP to “discuss” the alleged infringement. While the allowable measures for the sixth strike are unclear, the ISP could legally terminate the user’s internet access. Also, the party would be vulnerable to suits from the copyright holders under the DMCA.

Some proponents, however, insist that the connotation of a word like “strike” isn’t a precise indicator of the educative, as opposed to punitive, nature of the plan.

Concerns, however, are multifold. To begin, methods of transmitting information such as e-mail attachments, “cyberlockers,” and shared dropbox folders will not be policed or included in the plan. Additionally, ISPs will send the notifications to the ISP-provided e-mail address which, most would agree, are seldom checked by users. Of course, users will be able to appeal each “strike,” but that has done little to quell the concerns of the online community.

In the end, it is unclear whether this new attempt at preventing infringement will succeed or prove to be more trouble than it is worth. The consensus of the more technologically-inclined internet community seems to be that ISPs are, like so many other media-dissemination companies, grasping at straws.

–W. Colton Cline

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4 Responses to The New “Copyright Alert System:” Six Strikes and You’re Out

  1. Nick B. says:

    The part I dislike the most is this: “On the fifth strike, ISPs may begin “throttling” internet speeds or alternatively force the user to contact the ISP to “discuss” the alleged infringement.”

    How many “accidental” throttlings will take place before customers go on revolt. Some ISP’s have been accused (or admitted) to throttling customers who used too much bandwidth, even though you pay for an unlimited amount. Now they just have a new excuse to begin slowing down high-use customers bandwidth. I think that’s likely one reason they could get behind something like this. They can use it as a cost saving measure. Slow down high bandwidth users and eventually kick them off their network, because the price they pay for unlimited internet actually costs the ISP money.

    • Mike Silliman says:

      This is a very good point. I write to add that I think this system will fail spectacularly at combating piracy.

      First, the notification e-mails are sent to the ISP-provided account. Let’s be honest, who actually knows their ISP-assigned e-mail, much less checks it? It is unlikely that most users will get any “notice,” until they are blocked or throttled by this plan.

      More importantly, this system will be ineffective against serious pirates. Sure, the college students who just learned what a torrent is may be deterred, but torrent communities are already educating their members on how to circumvent this system. By the use of VPNs and proxies, pirates can hide their activity from the ISP and avoid the strikes altogether.

  2. Ryan Loofbourrow says:

    I do not understand why ISPs would make this agreement. Under the DMCA, the ISPs cannot be liable as long as they follow the proper “take-down” procedure. Here, they are going a step beyond the DMCA to actively police copyright infringers. Why would they go a step beyond what the law requires when it could mean harming their relationship with their customers? Are they getting paid by the Hollywood lobbies?

    • Colton Cline says:

      Thanks for the comment, Ryan.

      I can only imagine that this has something to do with politics. Sources seem suspicious that the Obama administration was so involved in the deliberation and formation of this plan. I think your intuition is correct that ISPs have little incentive in light of the DMCA (except, of course, that ISPs are often cable television providers, so they have some incentive to try to make you watch television vs. pirate content).