A coalition of content industry players and ISPs today announced an anticipated collaborative effort to “curb online content theft,” described in more detail on a dedicated website for the initiative. The PR materials put out by the group are more telling for what they don’t say than what they do.
The framework provides for a series of progressive “copyright alerts”—up to six—that ISPs will send their users based on notifications they receive from content owners of alleged infringement on those users’ Internet access accounts. Initial alerts will include “education” resources, further ones will require users to confirm receipt of the alert. Later alerts will provide for “mitigation measures” such as reduced Internet speed and inability to surf the web until the user takes some action, for example, discussing with the ISP or responding to “educational information about copyright.”
What happens after six alerts? The materials emphatically state that ISPs are not required to terminate subscriber accounts as a condition of the agreement with the content industry and that the collaboration does not amount to a “three strikes” regime. But the materials also take pains to assert that the DMCA “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: The content industry is staking its position that ISPs that don’t terminate subscribers after 5 or 6 alerts will lose their DMCA protection. There are plenty of arguments for why that position is wrong; given that an alert represents nothing more than an allegation untried by a court, we think loss of Internet access would be a draconian measure that Congress did not intend. Nonetheless, it may take an ISP willing to litigate the issue to make the argument.
Next, what opportunities does a user have to respond? The materials state that users can, for $35, request an “independent review” on several grounds before a “mitigation measure” is put in place. (It’s unclear whether users have a vehicle to flag errors in response to earlier alerts in hopes of averting later ones.) The grounds for review include a basis to believe that the user was not engaging in infringement, that the account was incorrectly identified, or that “the alleged activity was the result of the unauthorized use of the Subscriber’s account of which the Subscriber was unaware and that the Subscriber could not have reasonably prevented.” (My emphasis.) Notably, the review process specifically states that failure to secure a wireless router will only be accepted once as a defense, a provision with serious consequences for small businesses such as cafes that provide wireless access to customers and individuals with open wifi. Also notable is the fact that users who wish to raise some defenses including fair use authorization must be willing to have their personal information sent to the content owner who provided the underlying report of infringement.
Finally, copyright “education.” Users will be directed to the “Center for Copyright Information,” which is already replete with big-media rhetoric. Educating users about copyright is a worthy endeavor, but such education must be balanced and objective.
We’re still working through the details of the actual agreement—more thoughts to come.