Friday, April 12, 2013

There have been many attempts over the last few years to address online copyright infringement. The most recent effort is the Copyright Alert System (“CAS”), which was rolled out in February 2013 as a system created to educate and alert the public about the dangers and harm caused by copyright infringement. The CAS is the first to outline pro-active, temperate measures to try to remedy one cause of the problem: the perceived anonymity of infringers operating through peer-to-peer websites. The CAS gives infringers the opportunity to be notified of and to discontinue their wrongful actions before costly litigation ensues.

The CAS is not a “law” but a voluntary effort by a private consortium (the Center for Copyright Information) comprised of a variety of large copyright owners (e.g., the Motion Picture Association of America [MPAA], the Recording Industry Association of America [RIAA] and Disney, among others) and internet service providers (e.g., cable companies such as Verizon, Cablevision, and Comcast or “ISPs”). Under the CAS, when content owners discover infringing content posted on websites alleged to knowing permit copyrighted content to be infringed (such as BitTorrent), they will send the suspected infringers a series of escalating “alerts” notifying them that they are accused of infringing copyright protected content. The CAS does not involve litigation or demands for damages. The hope is that through this process, users will realize that infringement is not taking place anonymously on peer-to-peer file sharing websites, that content owners are aware of the infringement, and that there can be serious and expensive legal repercussions if the infringement does not cease.

Under the CAS, content owners communicate with alleged infringers anonymously through a series of “alerts” sent to the users by their ISP after that user is identified by a content owner as having participated in copyright infringement. The ISPs will not monitor for copyright infringement. Rather, the content owners will monitor peer-to-peer websites, such as BitTorrent, alleged to knowing allow users to traffic in infringing material, and will send an alert to an ISP that an infringement is taking place, identifying the user by their IP address. The ISP will then send to the registered users of that IP address (without revealing to the content owner any names, addresses or other contact information) a series of alerts stating that that IP address is suspected of copyright infringement and outlining possible sanctions for future infringements.

How will the “alert” system work? The series of six possible escalating “alerts” will be implemented individually by each ISP under its own process. Generally, the system will work as follows:

First and Second Alerts – These “information” alerts notify the user that an infringement has been identified by a content owner associated with that IP address and force the user to acknowledge receipt of the notice. For example, a message may be sent via pop-up to the user’s browser requiring a click through acknowledgement, or a user may have to log into their ISP account to read and acknowledge a message.

Third and Fourth Alerts – These “warning” alerts will use more urgent language. Some ISPs may require the primary account holder (rather than just authorized users of the account) to log in to view a message.

Fifth and Sixth Alerts – Fourteen days after each of these last two urgent alerts have been sent, an ISP may take “mitigation actions.” During the fourteen day window, the accused user may file an appeal of these alerts, as discussed below. “Mitigation actions” could include Verizon, for example, throttling data speeds down to dial-up speeds for a few days, Comcast posting a persistent pop-up in the user’s browser requiring that user to contact Comcast for “further education and information about copyright infringement” before it will clear the alert from the user’s browser, or Cablevision disabling internet access for 24 hours.

How do you “appeal” an alert or argue you didn’t do it? Several of the ISPs, such as Cablevision, Verizon and Comcast, have already published their appeal processes, which are the same. They provide for an anonymous appeal (since, forcing the user to identify themselves would have a chilling effect) to the American Arbitration Association if an appeal is filed within fourteen days of the user receiving either their fifth or sixth “alert.” No appeal can be filed before then. The user must pay a fee of $35 (which will be refunded if the user wins the appeal), which may be reduced or waived if the user can prove financial hardship.

Generally, there are six grounds upon which a user can argue that the fifth and sixth “alerts” (and any mitigation measures) were unjustified.

The reproduction of the copyrighted work and distribution of it through the file sharing website is a “fair use” as interpreted by copyright law and the courts. The IP address and account were incorrectly identified as one through which acts of alleged copyright infringement have occurred. The allegedly infringed copyrighted work was published prior to 1923 and is in the public domain. The alleged infringement was committed through the unauthorized use of the IP address and account and the ISP customer was unaware of it and could not reasonably have prevented it. The sharing of the copyrighted material was authorized by its copyright owner. The allegedly infringing file/content is not primarily the allegedly infringed copyrighted work.

What happens after six alerts if there is no appeal and the ISP has taken all “mitigation actions”? Since the CCI’s stated goal is to educate the public, no further alerts will be sent and no further actions will likely be taken via the CAS process. However, just because an ISP may not take any further action under the CAS does not mean that the content owner itself will not take action (e.g., file a copyright infringement lawsuit).

It remains to be seen however how this program will be received and whether content owners will find it to be an effective strategy. We will continue to provide updates on developments under this system as it is implemented.