Late last month, the Center for Copyright Information (CCI) launched its Copyright Alert System, creating a new effort by rights holders (including the Recording Industry Association of America and Motion Picture Association of America) and Internet Service Providers (ISPs), such as Comcast, Verizon, Cablevision and Time Warner Cable) to curb online copyright infringement.
People who are believed to be infringing copyright are notified by CCI with an alert that infringement linked to the users’ IP address has occurred. This notice is not a cease and desist legal action. Indeed, according to the CCI, there is never a threat of legal action. CCI is focused only on peer-to-peer network activities that may be infringements of the copyright law. According to CCI, wireless networks will not be tracked, Internet subscribers who have business accounts (rather than residential accounts) will not be targeted, and no one is going to lose their Internet access.
One has reason to be skeptical. In the past rights holders have been keen on establishing “3 strikes, you’re out” laws i.e., if one is believed to have infringed copyright online three times, rights holders would direct ISPs to terminate access to that person’s Internet account. This approach was criticized by consumer and civil society groups for First Amendment, privacy, and due process concerns. ISPs also opposed the proposal because they did not want to spend money and time trolling the Internet on behalf of rights holders. Certainly, this would not improve ISP and customer relations.
When stakeholders groups cannot reach an agreement, the government often urges stakeholders to work with one another to find a solution. This eventually led to the rights holder/ISP relationship, the formation of the CCI and the Copyright Alert System. Now rights holders with the help of the ISPs, plan to fight online infringement in a “friendly way” by giving users the benefit of the doubt.
Perhaps users are unaware that they are infringing copyright. Perhaps users are unaware that someone else has been using their network access. Perhaps users do not know that lawful content is available on the internet. Even after several notices are sent to a user alleging repeated infringement, the CCI will take no legal action. The Copyright Alert System only exists to help Internet users better understand that infringement is wrong and to re-direct users to available lawful content.
The Copyright Alert System employs a three stage warning system. The initial stage is purely educational. Alleged infringers are sent a message from their ISP that copyright infringement has been linked to the customer’s IP address along with information regarding when the infringement occurred and what content was infringed. The ISP provides helpful information on how the user can check the security of their account. If the alleged infringer does nothing and the infringement continues, a second message is sent reminding the user that copyright infringement has been found yet again, noting there are serious consequences for copyright infringement.
In the second stage of the Alert System (messages three and four) the customer is asked to acknowledge receipt of the previous messages, perhaps through a click-through pop-up notice, landing page, or similar mechanism. The ISP reminds the customer of earlier warnings and asks the customer to take heed.
If the infringement continues, the third stage (mitigation) includes a more serious message in one or two additional attempts to deal with the concern. Contact us or we will be forced to take harsher action. This action will differ depending on the ISP but in general includes a 2-3 day bandwidth slowdown, re-direction to a landing page that stays in place until the subscriber contacts the ISP to discuss the manner and/or a pointer to online copyright education information written by rights holders that one must read and acknowledge. There is an option for a user to challenge the assertion of infringement within a 14 day period, by completing a form along with $35 that is sent to the American Arbitration Board who will make a final determination. If the Board agrees that infringement did not take place, the $35 fee will be returned to the user.
After the sixth attempt to rectify the issues, the ISP stops sending warning messages. According to the CCI, no information identifying the user is sent to the rights holder at this or any other time. One might find this practice hard to believe considering the array of court activity that has occurred regarding illegal downloading.
Frequently Asked Questions
Will libraries that offer online access to the Internet be implicated? No, according to the CCI, if libraries have business accounts with their ISPs instead of residential accounts, public access computers will not be included. In addition, public WI-FI access available at libraries, coffee shops and so on will not be targeted.
Does the alert system apply to all Internet activities? No, according to the CCI, only peer-to-peer activities will be monitored.
Should libraries block peer-to-peer functionality on public access computers? No, because making peer-to-peer available to the public is not an infringement. Peer-to-peer networks can be used for the lawful exchange of information.
Will a user ever be permanently disconnected from the Internet? CCI says no. CCI representatives and its advisory board pledged that they are not focused on disconnecting users from the Internet. Instead they want to focus on education and on directing alleged infringers to legitimate content available.
Is the Copyright Alert System a “take down” procedure as described in the Digital Millennium Copyright Act (DMCA)? No. Rights holders will still issue take down notices when they find their content on web sites. In this process, designated agents at your institutions will receive the notice and investigate. Users will be asked to remove the content or face legal action unless they can prove that the use of the content is not an infringement. To be clear, the Copyright Alert System in no way affects the DMCA take down process.
ALA is monitoring the Copyright Alert System to see if promises are kept. While not a direct library problem, tracking systems of any kind are a threat to user privacy. In addition, any copyright educational materials that internet users are required to read must be balanced and not simply reflect the views of the rights holders. Detailed information on the alert system can be found in their memo of understanding (pdf).