In July of 2011, several Internet Service Providers announced a “Memorandum of Understanding” with major entertainment industry groups. In this memorandum, ISPs agreed to implement a “graduated response” program to educate and potentially penalize internet users suspected of sharing or downloading unauthorized copyrighted material. Fast-forward to last week, when the Copyright Alert System (CAS) was officially activated under the auspices of the newly-formed Center for Copyright Information (CCI).
In today’s political and cultural environment, any policy — voluntary or otherwise — involving the internet and content companies is bound to provoke a reaction. Reponses to the launch ran the gamut from “meh” to what can only be described as paranoia. So is the CAS a cabal of corporate interlopers out to thwart internet freedom, or a meaningful way of dealing with an issue that has bedeviled rightsholders and artists for close to fifteen years?
A close examination of the original memorandum as well as CCI descriptions of the program indicates that much of the panic is overblown. Still, any such effort benefits from transparency in order to build trust among stakeholders and to measure effectiveness. The former is key to making smarter choices around enforcement and growing the legitimate marketplace in a way that benefits not just the big companies, but also creators. In this way, incentives might be better aligned and artists and fans can gain confidence in today’s music ecosystem. Even if it was designed to limit unintended consequences, CAS must operate in plain sight.
But what does CAS actually do? To be clear, the program will not kick anyone off the internet. It’s also worth noting that ISPs can already do a lot this under existing terms of service. Internet providers are given some latitude under the agreement with regard to implementation. But basically, the “six strikes” framework breaks down into three components:
1. Education - After a content provider sends a notice to ISPs of alleged infringement, the ISPs will locate the suspected user and send them an initial alert. This alert explains that the user is been suspected of infringement and that such activity is unlawful and can lead to serious consequences. The alert may also include reminders about licensed alternatives and tips on checking online security.
2. Acknowledgement – Here, users will be required to acknowledge that they’ve received the alert and pledge to stop cease unlawful activity. After around six alerts, the ISP can choose to further escalate to phase three, which can bring actual penalties. (If a user goes a year without receiving further notices, the number of strikes gets reset to zero.)
3. Mitigation - At this stage, an ISP can enact penalties on repeatedly flagged users. Such penalties can include slowing internet speeds, redirection to educational pages, or at worst, temporarily restricting internet capabilities. ISPs are not allowed to disable voice, emergency or email services. Users under mitigation can appeal to an independent arbiter making arguments ranging from unauthorized access of their account to fair use. (But they do have to pay $35 for the privilege, refunded if the appeal is successful.)
Critics of the CAS say that the system could jeopardize user privacy and may also have a chilling effect on open wireless networks. The former is a stretch, given that the system doesn't use invasive technologies but rather public trackers to monitor for suspected infringing activity. The latter would be more of a concern if the CAS applied to business accounts, which it does not. As it stands, open WiFi is among the defenses available in arbitration. Those still inclined to fret should take some comfort in the fact that staunch consumer advocates Gigi Sohn and Jerry Berman are on the CCI advisory board.
The most important thing is whether the system actually works to reduce piracy. As a musician and artist advocate, this is foremost in my mind. At this point, many of us are looking for a positive outcome after the contentious battle that was SOPA. For music companies, getting intermediaries like ISPs to take on some responsibilities in addressing user behavior is probably more cost effective and less brand-damaging than other enforcement tactics. For musicians, it comes down to whether the policy helps protect their rights without compromising what they find useful about the internet. With CAS, we’ll probably have to be wait-and-see.
Previous efforts to go after downloaders, such as individual lawsuits with large statutory damages, were seen as disproportionate by many fans and musicians. And it’s not like the creators themselves saw any of the money from cases against P2P platforms. Most musicians I talk to are more concerned about whether new — and fully licensed — music services represent a viable way forward. Many are incensed by unauthorized access to their work, but they also recognize the value of an open and accessible internet. Inasmuch as the CAS helps with the former and doesn’t mess with the latter, the program could find favor.
As it stands, CAS will not break the internet, put anyone in jail or result in termination of service. This is a good thing. If it manages to diminish piracy while we sort out how the new marketplace can better reward musicians, even better.
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