Co-authored by Eric Goldman

As was widely reported last week, several major internet access providers (including, very likely, yours) struck a deal last week with big content providers to help them police online infringement, educate allegedly infringing subscribers and, if subscribers resist such education, take various steps including restricting their internet access. We’ve now had a chance to peruse the lengthy “Memorandum of Understanding" (MOU) behind this deal. Turns out, as is often observed, the devil is in the details – and they are devilish indeed.

Let’s start with the people taking credit: major content owners, service providers, and some government officials, principally New York Attorney General Andrew Cuomo. But guess who wasn’t invited to the party? The millions of subscribers who will be governed by the deal—the same subscribers who elect the politicians, buy the content owners’ goods and pay subscription fees to the internet access providers (which are likely to go up as administration costs are passed on – the UK’s graduated response system was estimated to cost about $40 per subscriber). Given that subscribers weren’t consulted, it’s probably not surprising that this deal is not in their interests.

Here’s some of the biggest problems with what resulted--and some ideas on what subscribers should demand of the system they’ll be paying for:

Who’s in Charge? The MOU calls for the creation of a new organization, called the Center for Copyright Information (CCI), to administrate the six-strikes system. CCI will be governed by a six-person executive committee comprised of representatives from content owners and internet access providers. Throwing a bone to subscribers, a three-person advisory board will include members “from relevant subject matter and consumer interest communities,” who will be given the chance to speak up whenever the executive committee asks. This possible advisory presence for subscribers is completely inadequate. Given they are the whole point of the MOU, subscribers deserve seats at the table as voting members of the executive committee.

“Mitigation” Measures and Independent Review: Internet access providers can punish accused subscribers by interfering with the subscribers’ connectivity, including by slowing transmission speeds, temporarily restricting web access for “some reasonable period of time,” and conditioning web access on completing a “meaningful copyright education program.” These mitigation measures can be imposed solely on the basis of the content owners’ assertions, without a judge ever determining that the subscriber did anything wrong.

Internet access has become an essential service in the digital age. Thus, just as we restrict the power of utilities to turn off services to their customers, we should not allow content owners to cause internet access providers to degrade or suspend their services without adequate due process.

The MOU does create a process designed to protect subscribers from unfounded accusations and punishment, but it’s hardly due process. Consider some of the procedural protections that subscribers might have sought if they had been at the bargaining table:

  • The burden should be on the content owners to establish infringement, not on the subscribers to disprove infringement. The Internet access providers will treat the content owners’ notices of infringement as presumptively accurate--obligating subscribers to defend against the accusations, and in several places requiring subscribers to produce evidence “credibly demonstrating” their innocence. This burden-shift violates our traditional procedural due process norms and is based on the presumed reliability of infringement-detection systems that subscribers haven't vetted and to which they cannot object. (The content owners’ systems will be reviewed by “impartial technical experts,” but the experts’ work will be confidential). Without subscribers being able to satisfy themselves that the notification systems are so reliable that they warrant a burden-shift, content owners should have to prove the merits of their complaints before internet access providers take any punitive action against subscribers.
  • Subscribers should be able to assert the full range of defenses to copyright infringement. A subscriber who protests an infringement notice may assert only six pre-defined defenses, even though there are many other possible defenses available in a copyright litigation. And even the six enumerated defenses are incomplete. For example, the “public domain” defense applies only if the work was created before 1923--even though works created after 1923 can enter the public domain in a variety of ways.
  • Content owners should be accountable if they submit incorrect infringement notices. A subscriber who successfully challenges an infringement notice gets a refund of the $35 review fee, but the MOU doesn’t spell out any adverse consequences for the content owner that make the mistake – or even making repeated mistakes. Content owners should be on the hook if they overclaim copyright infringement.
  • Subscribers should have adequate time to prepare a defense. The MOU gives subscribers only 10 business days to challenge a notice or their challenge rights are waived (a subscriber might get an extra 10 business days "for substantial good cause"). This period isn’t enough time for most subscribers to research and write a proper defense. Subscribers should get adequate time to defend themselves.
  • There should be adequate assurances that the reviewers are neutral. The MOU requires that reviewers must be lawyers and specifies that the CCI will train the reviews in “prevailing legal principles” of copyright law – an odd standard given the complexity of, and jurisdictional differences in, copyright law. We’re especially interested in the identity of these lawyers, and why they are willing to review cases for less than $35 each (assuming the CCI keeps some of the $35 review fee for itself). Perhaps there will be a ready supply of lawyer-reviewers who are truly independent. Given the low financial incentives, another possibility is that the reviewers will be lawyers tied—financially or ideologically—to the content owner community. To ensure that the reviewers remain truly neutral, reviewer resumes should be made public, and checks-and-balances should be built into the reviewer selection process to ensure that the deck isn’t stacked against subscribers from day 1.

Education or Propaganda? The MOU repeatedly emphasizes subscriber education as one of its main goals. Unfortunately, this education won’t offer a very balanced view of copyright, at least if the current version of the CCI website is any indication. That website currently is full of scare-mongering rhetoric decrying the ill effects of so-called “content theft” and stressing the security risks of P2P. As the site is further developed, the executive committee should reject the rhetoric and look instead to the numerous online resources that provide a balanced and nuanced view of copyright law, helping to inform subscribers about their rights as well as their responsibilities when it comes to creative works.

Transparency: The MOU contemplates ongoing evaluation of the system through a variety of reports. That seems like a good idea, but neither subscribers nor the general public get to see or comment on those reports. Similarly, the statement of “prevailing legal principles” used to instruct reviewers also should be made public so that subscribers know how reviewers are interpreting U.S. copyright law. Simply put, if subscribers are supposed to treat the system as credible, they need enough information to determine that the system actually is credible.

Conclusion: This MOU has been in development for years, and we imagine the parties will be reluctant to revisit it. But it has yet to be implemented, which means there’s still time for the parties (and their friends in government) and to address the deficiencies of their proposal from perspective of the subscribers who’ll be paying for it. This deal is never going to be good for subscribers (nor for the artists who won’t see one more red cent as a result of it) -- but it sure could be better.