On Wednesday, May 28th, the Center for Copyright Information (“CCI”) released its first progress report on the Copyright Alert System.

This report comes a year and a half after the implementation of the system in February of 2013. Designed as an educational tool to inform online copyright infringers of the illegality of their actions, the Copyright Alert System allows copyright holders to inform Internet Service Providers (“ISPs”) of illegal copyright activity on the Internet, prompting the ISP to send a series of alerts to the infringer, each escalating in severity. Unlike the common three-strikes programs in countries such as New Zealand and France, the Copyright Alert System consists of six alerts, where the first two serve as an “Initial Education Step,” the third and fourth as the “Acknowledgement Step,” and the fifth and sixth as the “Mitigation and Post Mitigation Measures Step.” During the mitigation steps, the copyright infringer could be subject to temporary Internet speed reduction and restricted Internet access.

Not the first of its kind, the Copyright Alert System still represents a large-scale private party agreement unprecedented in the copyright enforcement regime. Through the CCI, a group of record and film companies (including the Recording Industry Association of America (RIAA), the Motion Picture Association of America (MPAA),Warner Music Group, and Sony Music Entertainment) joined ISPs in a Memorandum of Understanding (“MOU”) to privately enforce online copyright infringement through the Copyright Alert System. Consequently, only participating members of the MOU can participate in this enforcement mechanism.

Since there has been much debate over the effectiveness of the program, the progress report released last week provides the first glimpse into actual Copyright Alert System implementation. According to the report, during its first year, “over 1.3 million alerts were sent to ISP account holders.” While the report characterizes the first year as “smooth and successful,” many Internet users and critics have questioned the actual level of deterrence these alerts provide. More have also questioned the ability of the Copyright Alert System to use mitigation measures at all, since the program was meant to serve educational and not punitive purposes. The report, however, revealed that of all alerts sent, only 3% were sent at the final mitigation step. The report also shows that of the 1.3 million alerts sent, only 265 request for review were filed with the built-in independent review process. Whether this number represents an acknowledgment of wrongs or a lack of understanding of the review process may still be up to debate.

It will be interesting to see whether these numbers will spark change of the existing Copyright Alert System or will affirm views that the System is fine as is. For now, it seems the Copyright Alert System is here to stay.

Dustin Kovacic

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