In US, New Tactics To Combat Online Copyright Infringement

The death was quick, quiet, and unmourned. The Copyright Alert System – a once vaunted plan to stop online copyright infringement in the US – was killed on 27 January. Lasting only four years, CAS had accomplished little and satisfied no one, according to many experts. What went wrong? And what is the movie and music industries’ next plan to combat online infringement?

CAS was always tendentious. It was the product of long and bitter negotiations between the movie industry, the music industry and five large internet service providers (ISPs) – Altice, Comcast, AT&T, Charter Communications, and Verizon. The result was an awkward compromise to combat peer-to-peer (P2P) file sharing of copyrighted music, movies, and TV shows.

The compromise worked like this: If a copyright owner believed a participating ISP’s user had shared a copyrighted file without authorization, the copyright owner would notify the ISP, which in turn would send a warning to its allegedly infringing customer. If the copyright owner believed the user committed further infringements, the owner would contact the ISP, which would in turn send increasingly stern notices to the user. Sometimes the user would be required to perform modest tasks, such as watching a video on copyright law, in order to maintain their internet access. After six or more warnings – the number varied from ISP to ISP – an allegedly infringing customer might be hit with penalties, including the temporary throttling of the customer’s internet speed. This graduated response system, however, never imposed the toughest possible sanction: terminating a customer’s internet connection.

Not Tough Enough

Those who ran CAS insisted it worked well. They repeated this claim until the very end, asserting in a 27 January press release that CAS was “a success” and, oh yes, this successful program was now terminated.

One of CAS’ main backers – the Motion Picture Association of America (MPAA) – offered a different take, admitting that CAS made little headway in its goal of stopping P2P infringement. A statement by Steven Fabrizio, MPAA’s executive vice president and global general counsel, declared that “a persistent group of hard-core, repeat infringers … are the ones who drive ongoing and problematic P2P piracy” and that CAS was “unlikely to change their behavior.” These infringers must be stopped by other means, Fabrizio stated.

Some experts have put it more bluntly. “I’ve seen no evidence that CAS did anything useful,” said Prof. James Grimmelmann of Cornell Law School.

The main reason for CAS’ apparent failure was that its sanctions for infringement were relatively toothless. “Without the threat of termination [of internet access], graduated response does not provide any strong deterrence against infringement. CAS never had termination, so it had little deterrent value,” said Prof. Annemarie Bridy of University of Idaho’s Law School.

Too Tough

Some graduated response systems outside the US were far tougher and did terminate internet access for repeat infringers. These systems, however, ran into a different problem: proportionality.

“As people have come to rely on the internet for more and more things, termination as a sanction is much less proportionate when you are talking about a couple of instances of copyright infringement. That was a problem. The punishment did not fit the crime,” said Bridy.

Consider what happened in France, after the country passed a law creating a tough graduated response system. That law – known by its initials, HADOPI – mandated account termination once an ISP’s customer received a third notice of infringement. France’s Constitutional Court struck down that penalty in 2009. The Court held that internet access is a right protected by the Declaration of Human Rights, in the preamble to the France’s Constitution. This constitutional right to internet access, the Court declared, could be restricted only after a judicial proceeding in which the accused infringer could offer a defense.

Following this ruling, the French government revised the HADOPI statute and removed the termination sanction. The country’s graduated response system then faded into irrelevance, according to Bridy.

Targeting ISPs

CAS is dead, but the music and movie industries haven’t given up their crusade against online copyright infringement. The organizations are just using new methods.

One strategy is to force ISPs to terminate the accounts of repeat infringers, pursuant to their obligations under the US Digital Millennium Copyright Act (DMCA). The DMCA provides that ISPs (and other online service providers) face no liability when their services are used by customers to transmit or post material that infringes copyrights. This safe harbor protection is vital for an online firm, because otherwise the firm could be hit with huge damage awards, based on all infringements committed by all its users. However, this key safe harbor protection is available only when an online service provider has, according to Section 512(i) of the DMCA, “adopted and reasonably implemented … a policy that provides for the termination in appropriate circumstances of subscribers and account holders … who are repeat infringers.”

For years, no one knew precisely what obligations Section 512(i) imposed on online service providers. “The statute says ISPs have to have a policy for dealing with repeat infringers. What that means is unclear. It has been the subject of litigation for 15 years,” said Grimmelmann.

But in recent years, the movie and music industries have convinced the courts to put some teeth into Section 512(i). The most important case in this regard is BMG Rights Management v. Cox Communications.

“That is the case everyone is watching. The plaintiffs are saying Cox was insufficiently responsive to their complaints of [repeated] copyright infringement by its customers, so Cox should be held liable,” said Grimmelmann.

The plaintiffs won in federal district court. The court found that because Cox had not seriously implemented the company’s own declared policy against repeat infringers, Cox had forfeited its DMCA safe harbor. The court subsequently found Cox liable for contributory copyright infringement and ordered the company to pay $25 million in damages.

Cox has appealed the rulings to the 4th Circuit Court of Appeals. “If Cox wins, the status quo is restored. Copyright owners can sue individuals who infringe, and ISPs only have a duty to identify those accused of infringing. That’s how the copyright system has worked in the last decade,” said Grimmelmann.

He added, “If the lower court ruling stands, ISPs will have to implement much stiffer protocols for throwing off users who are accused of repeat copyright infringement.”

Other Choke Points

The movie and music industries are simultaneously pursuing another tactic against online infringement. They have made voluntary agreements with payment processors, companies that provide ad services for websites, domain name registries, and even one domain name registrar. All these firms have agreed to withhold their services to websites that allegedly facilitate or engage in copyright infringement. Such websites are thus starved of ads (and ad revenues), cannot get payments from credit cards, and lose their domain names.

“These agreements go beyond what the DMCA requires,” said Bridy. “Enforcement is more multifaceted and complete than it used to be.”

These agreements, however, lack transparency. The public should know “what sites are being blocked and at what scale,” said Bridy.

These agreements also lack due process protections. Websites that supposedly infringe receive little or no notice of the allegations against them and have no serious opportunity to challenge these allegations of infringement.

“I don’t think the MPAA should tell a registry, ‘This a pirate site. Trust us, you must block it,’” said Bridy. Instead, she stated, the agreements should contain “a dispute resolution process similar to that in CAS. Before a final stage sanction was imposed under CAS, alleged infringers had the opportunity for a neutral advocacy process. AAA arbitrators trained in settled principles of copyright law would examine if there was a mistake or no infringement. But none of the voluntary agreements have anything like that in place.”

Copyright owners have little incentive to provide such due process protections. The US government has shown no interest in mandating such protections. In short, the movie and music industries have tossed CAS aside and have embraced a far more severe system of online copyright enforcement.

Image Credits: Wikimedia Commons