Last week, a group of ISPs and content organizations in the US announced a new “common framework” for dealing with alleged copyright infringement without requiring ISPs to switch off service for suspected infringers, but critics say the framework keeps service cut-off firmly on the table by invoking existing laws that holds ISPs legally liable for user behavior.
The framework – billed as the Copyright Alert System, which was created via collaboration between the MPAA (Motion Picture Association of America), the RIAA (Recording Industry Association of America), AT&T, Cablevision, Comcast, Time Warner Cable, and Verizon – creates a standardized progressive warning system under which suspected copyright infringers identified by copyright holders are sent an escalating series of notices that they are suspected of stealing content.
The framework is pitched as both an “education” move (with the email alerts giving the suspect a chance to take the “I didn’t know this was piracy and I’ll never do it again” route) and as a fraud-prevention mechanism (similar to credit-card fraud alerts) in cases where someone has been secretly using someone else’s account or unsecured Wi-Fi router to download pirated content.
Once the user gets six alerts, the ISPs will then take “mitigation measures”. According to the Center For Copyright Information (i.e. a website created by copyright owners to “educate” users on the pro-RIAA/MPAA line on piracy), such measures could include throttling, or restricting web access to a landing page instructing the user to contact the ISP. The CCI says it’s entirely up to the ISP what measure to enforce (or whether to waive enforcement altogether).
As for service cut-off, the CCI is noticeably careful in its language, saying that the framework “does not, in any circumstance, require the ISP to terminate a subscriber account” – right before it points out that section 512 of the Digital Millennium Copyright Act “requires that the ISPs have in place a termination policy for repeat copyright infringers as a condition of availing themselves of the Act’s ‘safe harbor’ provision.”
Translation, says Abigail Phillips of the Electronic Frontier Foundation in a blog post: “The content industry is staking its position that ISPs that don’t terminate subscribers after 5 or 6 alerts will lose their DMCA protection.”
Put another way, ISPs that don’t have a policy to terminate users for copyright infringement could themselves be held liable for whatever infringement takes place on their networks.
Whether it comes to that remains to be seen. I’ve written before that no ISP really wants to disconnect a source of ARPU if they can help it, and “three strikes” policies that require disconnecting users completely have lost their shine ever since a UN report concluded that such policies potentially violate international law.
Given the level of ISP participation in the Copyright Alert System’s development, the ISPs involved presumably either don't see any additional risk than what they already face under the DMCA, or view the framework as a reasonable compromise. (Or both.)
It will be interesting to see if content groups lobby ISPs in other markets to implement the framework, and – in the case of markets that don’t have DMCA-like laws in place – lobby legislators and regulators to create them (as they initially did with the ACTA treaty).
Regulators and ISPs in this part of the world looking at the Copyright Alert System might consider a few other flaws pointed out by the EFF in the current version – including a $35 fee for any user that want their case reviewed (even if it’s just to prove that their account was misidentified or misused by someone else) and the general fact that the burden of proof remains with the accused rather than the accuser.