Taking copyright fight to ISPs too punitive, say critics

A new system launched to curb online piracy of intellectual property is meant to be educational, not punitive, says the organization behind it. But suspended Internet service or slowing service to a crawl sounds pretty punitive to critics of the Copyright Alert System (CAS).

The Center for Copyright Information (CCI)'s move has ignited yet another debate over the best way to protect the owners of creative property without inhibiting the free flow of information and entertainment. CCI has also angered freedom of information advocates for another reason -- it makes Internet Service Providers (ISP) the first line of enforcement of alleged copyright infringement.

"Copyright holders have spent the last 15 years getting other parties like governments, user-generated content platforms and now ISPs, to subsidize their enforcement costs," said Parker Higgins of the Electronic Frontier Foundation. "Just as swamping the legal system with tens of thousands of individual lawsuits is not the right approach, neither is pitting ISPs against their subscribers."

The CCI, made up of five of the biggest ISPs, AT&T, Cablevision, Comcast, Time Warner Cable and Verizon, plus the Recording Industry Association of America (RIAA) and Motion Picture Association of America (MPAA), announced the CAS last week in a post by its executive director, Jill Lesser.

"Our content partners will begin sending notices of alleged P2P (peer-to-peer) copyright infringement to ISPs, and the ISPs will begin forwarding those notices in the form of Copyright Alerts to consumers," she wrote.

After five such notices, which include an escalation of warning language, so-called "mitigation measures" begin, which can include temporary reduction of Internet speed (Verizon customers, will get two days, increasing to three if the alleged violations continue); temporary suspension of service; redirection to a landing page until the user contacts the ISP or reviews and responds to some educational material; or other measures of an ISP's choosing.

Both Lesser and the ISPs (Verizon and Comcast launched their CAS system last Wednesday), say that no subscribers will be terminated, and that they will have plenty of warning before any sanctions are imposed. They say also that there is an appeal process.

But such consolations are not comforting to critics of a system now more commonly known as "six strikes."

First, critics complain that ISP subscribers, or their advocates, were not at the table during the development of the system. "That's one of our chief frustrations with this program," said Higgins. "It was hatched and developed behind closed doors, without ever getting input from the users."

The CCI's Jill Lesser was not available for comment, but a source close to the organization who declined to speak for attribution said CCI did include consumers and subscribers in its exploratory research for the CAS.

Another problem, critics said, is that there are ways around CAS for those with access to virtual private networks (VPN). Cyrus Farivar at Ars Technica wrote that Comcast representative Charlie Douglas told him that he was probably correct that the system would not be able to see possible violations of those using a VPN.

Critics say also that the doctrine will also snare those who are allowed to use copyrighted material under the "fair use" doctrine.

The CCI disputes this. It has pages on its website that explain permissible use of material, what are grounds for a review or challenge of an alert that a user thinks is invalid and what are the legal ways to find and use protected content.

But Paul Paray, a partner at InfoLawGroup, said that whenever you have an automated system, there is no way to differentiate with certainty between permissive or improper conduct. "At some point, you will need a person to make a decision."

James DeNaro, an attorney with CipherLaw, agreed. "If you wanted to capture a frame of a movie and use that frame as your desktop background on your home computer, that use would likely be considered a fair use and might not be copyright infringement," he said. "However, the CAS could flag the download as potential copyright infringement."

Paray also noted that a user who wants to challenge or appeal the violation notices has to pay $35 up front to do so, although CCI says that money will be refunded if the user wins the appeal. Still, Paray said that although the fee is small there should probably not be any fee to "appeal" something that is not yet even in the judicial system.

"We're not talking about somebody who is involved in a lawsuit or regulatory action so assessing fees up front in order to obtain final vindication can be perceived as unfair," Paray said.

EFF's Higgins says the doctrine is unfair to users. "When users wants to appeal an accusation, they have to pay $35 up front just to file the appeal, and then only get to choose from an incomplete list of pre-set options for their appeal," he said. "That system really turns the idea of due process on its head."

Critics say there are much better ways to curb piracy than monitoring and then punishing alleged violators.

"Netflix has taken a bigger bite out of movie 'piracy' than lawsuits ever have," Higgins said. "There is plenty of room for innovators to develop good distribution systems, including, for example, a voluntary collective licensing system. But rightsholders need to get out of the way of innovation and embrace that as a solution."

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