Uh Oh Are You in Trouble? The “Six Strikes” Copyright Warning System

Tired of illegal file sharing of copyrighted works, the Center for Copyright Information (“CCI”) and its partners, the Recording Industry Association of America (“RIAA”), Motion Picture Association of America (“MPAA”), and leading U.S. Internet Service Providers (“ISPs”) began implementing the Copyright Alert System (“CAS”), also referred to as the “Six Strikes” system in February.  The Copyright Alert System (“CAS”), also referred to as the “Six Strikes” system, is a subscriber notice system in which the ISPs will monitor Internet traffic to identify illegal downloads of copyrighted works.

Under the CAS, internet subscribers whose accounts are used illegally to share copyright material may receive one or more alerts from their internet service provider (ISP).  If the subscriber receives five or six alerts (a.k.a strikes), their account may be subject to the application of a ‘mitigation measure’ such as temporarily slowing down the connection speed.The CAS follows on from the ‘graduated’ response schemes aimed at reducing internet-facilitated copyright infringements that have been introduced in other countries, including New Zealand, France, South Korea and Ireland.

CCI’s stated objectives are to “educate consumers about the importance of copyright protection” and to “alleviate confusion and help Internet users find legal ways to enjoy the digital content they love”.

CCI’s website details the operation of CAS and contains links to legal sources for downloading content and links to information about copyright.

The initial alerts are intended to be educational in nature.  However, if copyright infringement continues on a subscriber’s account after multiple alerts (generally five or six depending on the ISP), the ISP may take steps that, according to CCI, “temporarily affect that subscriber’s internet experience”.  This is referred to as the mitigation stage.

Steps to be taken in the mitigation stage vary across the different ISPs.  For example:

  • Cablevision will suspend a subscriber’s internet access for 24 hours;
  • Comcast will place a persistent, in-browser alert that will only be removed if a customer contacts Comcast;
  • Time Warner will direct the subscriber to a landing page requiring the subscriber to agree not to engage in illegal activity before having internet access restored and, if that does not work, will use a pop up which includes a phone number that the subscriber must call before internet access is restored; and
  • Verizon will reduce the dial-up speeds of the subscriber for a few days to approximately 256 Kbps.

CCI has said that consequences under the mitigation stage are designed to protect a subscriber’s ability to access important services, such as medical-monitoring or home security services.

Subscribers may only challenge previous alerts once they have entered the mitigation stage.  A challenge occurs through the Independent Review Process and is handled by the American Arbitration Association to ensure impartiality. A request for a review requires payment of a filing fee of US$35 (although a waiver based on hardship may be granted) and may be based on one or more of the following grounds: misidentification of account; unauthorised use of account; use authorised by copyright owner; fair use; misidentification of file and work published before 1923 (and therefore not subject to copyright under US law).

HOW WILL THIS AFFECT YOU?

Well that remains to be seen but as it becomes easier to knowingly and unknowingly steal copyrighted material this system will serve to both educate users and protect the investment of companies and innovators. Most of the entities involved place a high value on their intellectual property but also understand the importance of exposure online. Therefore any actions taken will keep both of these interests in mind. Additionally, this is not legislation so it is a self-regulation effort therefore how strict they are with penalties or this “mitigation stage” is hard to predict. Which is also great for the user, experiencing these consequences instead of being taken to court is definitely a plus.  However, abuse of this process could lead to severe prosecution. Another interesting fact, the 5 ISPs cover an estimated 85% of US residential customers, which although significant is not exhaustive.  There will be sites not subject to this regulation at all. It will be hard for the average user to know the difference and users are still subject to other legal action.

Users should always be careful when using the intellectual property of other because even without this system you open yourself up to potential litigation when you use picture, video, music, etc. that was not created by you. Always seek permission before using someone else’s intellectual property. 

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