US Perspectives: US Tries Gentler Copyright Enforcement

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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.

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