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IP-Watch interns talk about their Geneva experience in summer 2013. 2:42.

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    US Perspectives
    US Perspectives: US Tries Gentler Copyright Enforcement

    Published on 14 March 2013 @ 4:45 pm

    By for Intellectual Property Watch

    On 25 February, the US opened a new front in its war against online copyright infringement. Five of the nation’s biggest internet service providers (ISPs) joined with the movie and music industries to launch the Copyright Alert System, a new means of attacking unauthorised file-sharing. This ISP-based enforcement system is similar to efforts in at least seven other industrialised countries. Some of these efforts have apparently slashed unauthorised file-sharing, which suggests the US system will be similarly successful. It is unclear, however, if the US system (or any of the other countries’ systems) will succeed in their ultimate goalboosting revenues for the movie and music industries.

    The Copyright Alert System (CAS) has much in common with ISP-based enforcement regimes in other countries. In all these systems, content owners are responsible for monitoring peer-to-peer (P2P) systems such as BitTorrent and for determining if users of those systems are improperly sharing copies of songs, movies or TV shows. If a content owner finds that a P2P user has infringed, the content owner identifies the user’s internet address and ISP, then informs the ISP about this alleged infringement. The ISP, in turn, sends a notice of this copyright infringement to its customer who was using the internet address at the time of the alleged infringement.

    The ISP may also sanction its customer, but the severity of the sanction and when it is imposed vary from country to country. South Korea and Taiwan have the most stringent systems. In those countries, an ISP terminates a customer’s account following the first infringement accusation made against that customer, according to an article by US attorney Sean Flaim, published in the New York University Journal of Intellectual Property & Entertainment Law.

    Canada has the most lenient ISP-based enforcement system. Its ISPs do not impose sanctions against customers accused of infringement. The ISPs merely send notices to such customers, informing them that they have committed copyright infringement and urging them to stop this behaviour.

    Most countries with ISP-based enforcement, however, have adopted graduated response systems. Under these systems, an alleged infringer receives a series of notices (with increasingly urgent warnings) before a serious sanction is imposed.

    New Zealand has a government-mandated “three strikes” system. After the third notice of infringement, an infringing user can be fined up to NZ$15,000 (approximately US$12,375).

    The French government has adopted a similar system. After the third notice of infringement, an infringing user can be slapped with one of several different sanctions, including a fine of up to €1500 (approximately US$2,000) or a suspension of internet service for up to one year.

    The United Kingdom’s Digital Economy Act authorises a severe three-strikes system, with sanctions including reductions in internet speed and temporary suspensions of internet service. However, for at least the first year of its operations (expected to commence in March 2014), the system will not require ISPs to sanction infringing file-sharers.

    In Ireland, the country’s biggest ISP has voluntarily adopted a “four strikes” system. Eircom - which has 42 percent of the country’s fixed-line broadband market, according to a December 2012 report [pdf] by Ireland’s Commission for Communications Regulation – states that after a third notice, a customer’s internet service will be suspended for seven days. After a fourth notice, Eircom states it will disconnect the customer’s broadband service for 12 months.

    The United States has an ISP-based enforcement system which, like the one in Ireland, is not mandated by law. The US Copyright Alert System (CAS) is the result of an agreement between content industries and five major ISPs. These ISPs – Verizon, Comcast, AT&T, Cablevision, and Time Warner – provide the vast majority of the country’s wired broadband access.

    The details of the CAS sanctions vary from ISP to ISP, but in general, they use a “six strikes” system. Customers who allegedly infringe receive notices via email and/or their browsers. When a customer receives fifth and sixth notices, web access is disabled (significantly or completely) until the customer calls the ISP. The purpose is to educate customers, not punish them, according to spokespeople for the ISPs.

    “We are just making sure the primary account holder is aware this [infringement] is happening, so they can have a conversation with the rest of their household,” said Charlie Douglas, a senior director at Comcast. When a customer has to call, he adds, a Comcast representative “will talk a bit about copyright, why it exists, and let them know there are plenty of ways to legally access content.”

    Unlike other participating ISPs, Verizon punishes repeat infringers. After it sends a fifth notice, Verizon chokes the customer’s broadband internet speed down to a relative crawl – 256 Kbps, which is dial-up speed. This bandwidth throttling lasts for two days. After it sends a sixth notice, Verizon throttles the customer’s bandwidth for three days.

    If a customer continues to infringe after all six notices are sent, the ISPs take no further action under the CAS. Nevertheless, persistent infringers will not escape further notices, because the ISPs generally reset their count every 12 months. After a year, the whole notification process starts all over again.

    Evidence from other nations suggests that the CAS will significantly decrease file-sharing infringement, even if infringers receive little or no punishment. Notices, by themselves, are enough to get people to change.

    “Some data from the French system suggests that a very high percentage of people who get one notice don’t receive a second notice. Similar data is coming out of Ireland,” said Prof. Annemarie Bridy of University of Idaho Law School.

    Canada, too, has had the same experience. “Evidence suggests the notice regime has been working,” said Prof. Jeremy de Beer of University of Ottawa Law School. “The vast majority of people will change their behaviour when they are notified that what they are doing is illegal and their behaviour is not anonymous.”

    But even though it may be effective at stemming file-sharing, the CAS by itself is unlikely to significantly boost revenues of the movie, TV or music industries. “Repression may reduce unauthorised use of music, but it has not yet been shown to increase sales of music,” said Prof. Daniel Gervais of Vanderbilt University Law School. The real answer, he suggested, is for content industries to give consumers legitimate methods of getting the content they want, when they want, on the devices they want, and to do so at reasonable prices.

    “If you can move people to a paid, open system like Spotify, the need to file-share will go away,” Gervais said. “Then maybe repression will be much more effective, because then you can target those who really don’t want to pay.”

    Steven Seidenberg is a freelance reporter and attorney who has been covering intellectual property developments in the US for more than 15 years. He is based in the greater New York City area and may be reached at info@ip-watch.ch.

     

    Comments

    1. Spotify shot the Pirates! (but they did not supply the mp3′s) | media t0m0rr0w says:

      [...] * Seidenberg, S, 2013 ‘US Tries Gentler Copyright Enforcement’, Ip-watch.org, 14 March, viewed 1 May 2013,< http://www.ip-watch.org/2013/03/14/us-tries-gentler-copyright-enforcement/&gt; [...]

    2. Copyright Summit: Collaboration And Protection: Digital Management For The … » Cyber Crimes Unit | Cyber Crimes Unit says:

      [...] service provider (ISP)-based Copyright Alert System (CAS) to handle online copyright infringement (IPW, US Perspectives, 14 March 2013). Lesser highlighted the educational nature of CAS, which has an emphasis on “directing people to [...]


    Leave a Reply

    We welcome your participation in article and blog comment threads, and other discussion forums, where we encourage you to analyse and react to the content available on the Intellectual Property Watch website. By participating in discussions or reader forums, or by submitting opinion pieces or comments to articles, blogs, reviews or multimedia features, you are consenting to these rules.

    We welcome your participation in article and blog comment threads, and other discussion forums, where we encourage you to analyse and react to the content available on the Intellectual Property Watch website.

    By participating in discussions or reader forums, or by submitting opinion pieces or comments to articles, blogs, reviews or multimedia features, you are consenting to these rules.

    1. You agree that you are fully responsible for the content that you post. You will not knowingly post content that violates the copyright, trademark, patent or other intellectual property right of any third party or which you know is under a confidentiality obligation preventing its publication and that you will request removal of the same should you discover that you have violated this provision. Likewise, you may not post content that is libelous, defamatory, obscene, abusive, that violates a third party's right to privacy, that otherwise violates any applicable local, state, national or international law, that amounts to spamming or that is otherwise inappropriate. You may not post content that degrades others on the basis of gender, race, class, ethnicity, national origin, religion, sexual preference, disability or other classification. Epithets and other language intended to intimidate or to incite violence are also prohibited. Furthermore, you may not impersonate others.

    2. You understand and agree that Intellectual Property Watch is not responsible for any content posted by you or third parties. You further understand that IP Watch does not monitor the content posted. Nevertheless, IP Watch may monitor the any user-generated content as it chooses and reserves the right to remove, edit or otherwise alter content that it deems inappropriate for any reason whatever without consent nor notice. We further reserve the right, in our sole discretion, to remove a user's privilege to post content on our site. IP Watch is not in any manner endorsing the content of the discussion forums and cannot and will not vouch for its reliability or otherwise accept liability for it.

    3. By submitting any contribution to IP Watch, you warrant that your contribution is your own original work and that you have the right to make it available to IP Watch for all purposes and you agree to indemnify IP Watch, its directors, employees and agents against all damages, legal fees and others expenses that may be incurred by IP Watch as a result of your breach of warranty or of these terms.

    4. You further agree not to publish any personal information about yourself or anyone else (for example telephone number or home address). If you add a comment to a blog, be aware that your email address will be apparent.

    5. IP Watch will not be liable for any loss including but not limited to the following (whether such losses are foreseen, known or otherwise): loss of data, loss of revenue or anticipated profit, loss of business, loss of opportunity, loss of goodwill or injury to reputation, losses suffered by third parties, any indirect, consequential or exemplary damages.

    6. You understand and agree that the discussion forums are to be used only for non-commercial purposes. You may not solicit funds, promote commercial entities or otherwise engage in commercial activity in our discussion forums.

    7. You acknowledge and agree that you use and/or rely on any information obtained through the discussion forums at your own risk.

    8. For any content that you post, you hereby grant to IP Watch the royalty-free, irrevocable, perpetual, exclusive and fully sub-licensable license to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, perform and display such content in whole or in part, world-wide and to incorporate it in other works, in any form, media or technology now known or later developed.

    9. These terms and your posts and contributions shall be governed and interpreted in accordance with the laws of Switzerland (without giving effect to conflict of laws principles thereof) and any dispute exclusively settled by the Courts of the Canton of Geneva.

     

     
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