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August 1, 2011

Media Industry Strikes Back At Online Infringers

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It’s no secret that piracy of music and movies over the Internet is rampant and costs the entertainment industry billions of dollars annually. Most people involved in this activity are not hardened criminals, and if asked, will probably admit that it is a technical violation of the law, but that it’s not really that illegal. You might even hear an argument that since the media industry is resigned to the fact that nothing can be done about it, it’s basically permissible. Legal solutions alone clearly have not worked. Most acknowledge that the only solution is an innovative combination of advanced detection technology and enforcement of applicable intellectual property and Internet laws. Well, perhaps a first step in this direction has now occurred.

Enter the Copyright Alert System

On July 7th major Internet service providers (ISPs), the Recording Industry Association of America (RIAA), and the Motion Picture Association of America (MPAA), after beginning negotiations in 2008, announced the establishment of the Copyright Alert System (CAS). The CAS has been designed to ferret out people using peer-to-peer filing sharing applications to transfer copyrighted music and movies. The ISPs that have agreed to implement the CAS include biggies such as Comcast, AT&T, Time Warner, Cablevision and Verizon.

This alliance of ISPs and media companies breaks new ground. In the past, ISPs were accused by media companies of ignoring massive infringing activities. Why join forces now? According to one commentator, the large amount of bandwidth required for these infringing activities has incentivized the ISPs to assist in reducing such sharing, thereby reducing bandwidth usage. The CAS is expected to be implemented later this year.

What to Expect

Monitoring software will be utilized to spy on file-sharing services like BitTorrent. When a media company identifies activity suspected to include the unlawful sharing of copyrighted materials, then the media company will notify the suspect’s ISP. The notice to the ISP will include the suspect’s IP address and the time that the infringing sharing occurred. That information will be enough for the ISP to specifically identify the suspect.

What follows is a series of email notices sent to the suspect. The first level notice informs the suspect that illicit activity has been associated with their computer or device. If the suspect continues the infringing sharing activities, then a series of messages will be sent seeking acknowledgement that the messages have been received. The purpose of this second level of messages in a bit unclear. However, seeking acknowledgement probably will have the effect of suggesting to the suspect that some future threatening response might be in the offing. It is doubtful that anyone will acknowledge receipt of this second level of notices. This second level of message would make any defense of innocent infringement unavailable. If these second level messages have not caused the suspect to cease the activities, then the ISP may implement a consequence or “mitigation measure” as it is called in the CAS.

Mitigation measures could include a reduction of Internet speeds, causing the user to be automatically directed to an educational landing page with information on the topic of copyright infringement, or even suspension of service. These mitigation measures are not obligatory on the ISPs. While, on the one hand, ISPs have a disincentive to terminate service (i.e., they will lose customers), on the other hand, the music and movie industries will likely keep increasing the pressure on the ISPs to impose some “mitigation measures.” The CAS does have an appeal process which costs $35 to initiate.

While all this might sound fairly threatening, under the CAS, the ISPs will not provide any personally identifying information about the suspected infringers to the copyright holders without a subpoena or court order.

How Effective Will It Be?

It is important to recognize that the CAS does not result in any new laws or regulations. Under current law, ISPs are required to terminate repeat infringers in order to maintain protection of the safe harbor under Section 512 of the Digital Millennium Copyright Act (DMCA). Also, copyright owners can always sue copyright infringers, and send take down notices under the DMCA.

The RIAA has indicated that they are not expecting to influence the hardcore infringers. Therefore, after a certain number of CAS warning notices have failed to cause a change in behavior, the notices will cease. The RIAA expects that the notices will cause most infringers to stop even before any mitigation measures are implemented.

What would happen if the alleged infringers still don’t comply? Well, the RIAA sued 35,000 alleged infringers between 2003 and 2008, and it has not denied that it may attempt this strategy in conjunction with the implementation of the CAS. However, how they will actually respond is anybody’s guess.

The American Civil Liberties Union (ACLU) and others have expressed concern that the CAS could result in people being denied access to the Internet without any due process. Our justice system considers people innocent until proven guilty. However, the CAS would operate in an opposite manner, by putting the burden of proving innocence on the accused.

The CAS is being billed as an educational program to alert people when their accounts are being used to share infringing materials. The press release announcing the CAS stresses that parents have a right to know if their Internet connection is being used for illicit activities. The expectation, as stated in the fact sheet put out by the Center for Copyright Information (CCI), which was established as part of the CAS, is that once people are aware that their accounts are being used for illicit purposes they will voluntarily comply. The CCI claims that 70% of users will take action if they know that their accounts are being used for infringing activities and that such activities could subject them to legal liability and consequences for violating their ISPs terms of use or acceptable use policy. Stay tuned.


William Galkin, Esq. is an Internet lawyer who has dedicated his legal practice to representing Internet, website, e-commerce, computer technology and new media businesses in the U.S. and around the world. To learn more about agreements needed by Internet businesses and websites go to http://www.galkinlaw.com/services.

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