Copyright Alert System

The Copyright Alert System (CAS) is a private system for alerting and punishing internet subscribing customers of AT&T, Cablevision, Time Warner, Verizon and Comcast in regards to accusations of bittorrent use via their home networks to access alleged copyrighted material from a list of specific entertainment corporations and their CAS registered content. It is limited to customers of those internet vendors in the United States. The consortium that manages the program has branded it as the six strikes program.^[1]

It is intended to be a graduated response system wherein participating ISPs send up to six^[2] electronic warnings notifying subscribers of alleged copyright infringement, as reported by a monitoring service working on behalf of participating copyright owners.^[3] If copyright infringement is reported after a final warning, the ISPs have agreed to implement "mitigation measures", which can include penalties such as bandwidth throttling.^[4][5]

The CAS framework was established on July 7, 2011 by the Center for Copyright Information (CCI), after 3 years in the making.^[2] After multiple delays, ISPs began implementing it in February 2013.^[6]

The CAS has been the subject of criticism concerning its effectiveness and possible privacy violations.

Overview

The Center for Copyright Information employs the services of MarkMonitor (often d/b/a DtecNet) to detect and monitor suspected copyright infringement activity.^[7] Although MarkMonitor monitors many infringement venues, the EFF says that at this time, it appears that for purposes of the CAS, the company will only monitor peer-to-peer traffic from public BitTorrent trackers.^[8]

A review of MarkMonitor's system for the CAS states that infringement is only considered detected for uploads, when MarkMonitor's BitTorrent client successfully obtains pieces of known-infringing content from a peer in the swarm.^[9] The pieces are compared to pieces from an already-downloaded copy of the content, which has already been matched to content samples supplied by the copyright owners.^[9]

When suspected infringement is detected, the ISP for the IP address associated with the suspicious activity is notified. The ISP, in turn, notifies the subscriber to whom the IP address was assigned at the time of the alleged infringement, informing the subscriber that their account is suspected of being used to infringe copyright, and to warn of potential consequences. Users who continue to receive warnings may be issued up to six alerts in the form of pop-up messages and e-mails before stronger measures are taken by the ISP.

Intent

The Copyright Alert System is intended to be

a consumer-focused process for identifying and notifying residential wired Internet access service customers of the participating ISPs (other than dial-up subscribers) who receive multiple notifications of allegations of online infringement made via P2P networks and applications, in an effort to educate consumers, deter online infringement, and direct consumers to lawful online legitimate sources of content online.^[10]

The Center for Copyright Information believes that the Copyright Alert System will be effective in reducing both intentional and unintentional copyright infringement. By providing willing infringers with information regarding the serious consequences of copyright infringement, the CCI hopes to steer would-be infringers to legal online content providers. The CCI hopes that unwitting infringers, such as those whose home networks have been hijacked by unauthorized users or the parents of children who are infringing, will use the knowledge that their account is being used for copyright infringement to force users of the account to curtail these activities. The CCI also hopes to increase parents’ involvement in what their children are doing online by alerting misconduct and abuse of their accounts.^[11]

Alerts

The system of alerts is as follows:

• The first and second alerts will notify ISP subscribers that their Internet account has allegedly been used for copyright infringement and provide an explanation of how to avoid future offenses, as well as direct users to lawful media content site.^[12]
• If the user’s behavior persists, a third and fourth alert will be sent. These alerts will ask “the subscriber to acknowledge receipt” of the messages by clicking a notice.
• After a fifth alert, ISPs will be allowed to take "migitation measures" to prevent future infringement.
• If the ISP did not institute a mitigation measure following the fifth alert, it must enact one after the sixth alert.

Mitigation measures may include: "temporary reductions of Internet speeds, redirection to a landing page until the subscriber contacts the ISP to discuss the matter or reviews and responds to some educational information about copyright, or other measures (as specified in published policies) that the ISP may deem necessary to help resolve the matter”.^[13]

Appeal process

Individual alerts as to alleged customer violations can not be questioned. When, and only when, a mitigation measure is about to be imposed, a customer may request arbitration of the decision to penalize. At that point the customer must pay $35 and will then be informed of the number of Alerts that need to be invalidated by then arbitrator to avoid mitigation. An arbitration request must be requested within a 14 day window starting with the notification from the consortium of the alert triggering a mitigation measure. Customers do not at this time have a contractual obligation restricting them to binding arbitration and do not give up their legal right to the US court system.^[14]

History

The Copyright Alerts System framework was devised by the following companies and organizations:^[12]

• MPAA members Walt Disney Studios Motion Pictures, Paramount Pictures, Sony Pictures Entertainment, Twentieth Century Fox Film Corporation, Universal Studios, and Warner Brothers Entertainment.
• IFTA
• RIAA members Universal Music Group, Warner Music Group, Sony Music Entertainment, and EMI Music.
• A2IM
• The ISPs AT&T, Cablevision, Comcast, Time Warner Cable, and Verizon.

New York Governor Andrew Cuomo is credited as helping the parties negotiate and create the Copyright Alerts System.^[15]

The negotiating parties completed a memorandum of understanding (MoU) in July 2011 and amended it in August 2011 and October 2012.^[10] The MoU establishes the framework for the Copyright Alerts System, establishing the roles and expectations of the ISPs, the copyright owners, and the monitoring services.

The Copyright Alerts System launched in late February 2013.^[6]

Technology review

The CCI contracted with Stroz Friedberg, a global digital risk management and investigations firm, to conduct an analysis of MarkMonitor's system for monitoring, verifying, and enforcing online copyright infringement on P2P file sharing networks.^[9] Stroz Friedberg assessed the efficacy of MarkMonitor’s methodologies to monitor, identify, collect evidence, and generate notices to P2P infringers^[9] The contractor published the findings in a confidential report to the CCI in November 2012, concluding that the methodologies were "well developed and robust," though not without room for improvement.^[9]

The publicly released version of the report contains a number of redactions of various details.^[9] Among the report's conclusions were the following claims:^[9]

• "MarkMonitor’s methodologies effectively identify P2P online copyright infringers."
• "MarkMonitor’s evidence collection in connection with P2P infringement is robust, defensible, and will withstand adverse party scrutiny or evidentiary challenges."
• "The methodologies include appropriate checks and balances at key points in the work flow to ensure accuracy."

Although both the CCI and Stroz Friedberg claimed the review was independent, the CCI didn't release the Stroz Friedberg report until after media reports surfaced that Stroz Friedberg was an RIAA lobbying organization from 2004 to 2009.^[16][7] The firm's sole lobbyist for the RIAA (and, briefly, Universal Music Group)^[17][16] was Beryl A. Howell, the company's executive vice president,^[18] executive managing director,^[19] and general counsel.^[19] Howell was previously involved in crafting numerous pieces of legislation for the investigation and prosecution of computer crime and copyright infringement.^[16][20][21]

In response to the "questions" raised, the CCI issued a statement reaffirming confidence in Stroz Friedberg's propriety and announcing the public release of the report, but also conceding,

we are, however, sensitive to any appearance that Stroz lacks independence, and so CCI has decided to have another expert review Stroz’s initial evaluation of the content community’s processes. We will be selecting the additional expert promptly and will make that information available.^[22]

The CCI also hired Stroz Friedberg to review the accuracy of the system by which ISPs match the IP addresses of suspected infringers to the ISPs' subscribers. The results of that review have not yet been publicly released.^[7]

Reception and controversy

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The White House supported the Memorandum of Understanding, calling it "a positive step and consistent with our strategy of encouraging voluntary efforts to strengthen online intellectual property enforcement and with our broader Internet policy principles, emphasizing privacy, free speech, competition and due process."^[23]

However, the CAS has been criticized for a perceived lack of public input, perverse incentives between media corporations and ISPs, harsh mitigation measures, and reversal of burden of proof standards.^[24] The Electronic Frontier Foundation (EFF) has made particularly detailed criticisms.^[25]

Privacy

The CCI says that at no point in the process will the ISPs reveal customer information to the CCI, the monitoring service, or the copyright owners.^[26]

The EFF says that because the system "will not identify those who take steps to anonymize their internet traffic using a VPN or Tor" it will not stop dedicated infringers.^[8]

Bias about copyright law

The EFF has claims the materials used to "educate consumers" are "more like propaganda," and that the framework violates the principle of presumption of innocence.^[27]

Bridy writes that the copyright law applied in independent reviews will be determined by an expert commissioned by the American Arbitration Association and approved by CCI, who is required to hear "prevailing legal principles" of copyright law as viewed by copyright owners.^[28]: 55 Bridy suggests that the legal standards in an independent review will call into question the fairness of the independent review proceeding, citing what she says are inaccurate statements from the RIAA on copyright.^[28]: 56 Bridy also says that the lack of written decisions in the independent review process will make it difficult to determine what the rules are for independent review or whether they are being followed.^[28]: 57

Lack of consumer input

The EFF cites a number of problems with the Memorandum of Understanding (MoU).^[29] Firstly, the EFF criticizes the lack of subscriber representation in the CCI, noting that the establishment of the CCI involved only large media corporations and ISPs, but left out representatives of the subscribers who purchase these companies' products. Further, the CCI only allows for a three person advisory board from consumer interest groups, while the executive board is composed of six representatives from the media companies and ISPs, an arrangement which the EFF believes to be inadequate for consumer representation.

Severity of mitigation measures

The EFF also argues that the mitigation measures to be undertaken by ISPs in response to alleged copyright infringement are overly harsh, as they may be used to deny consumers access to the Internet, which EFF maintains is as fundamental a right in the digital era as is access to other utilities such as electricity.^[29] Annemarie Bridy wrote that although temporary suspension is a possible mitigation measure, market pressure would discourage ISPs from using it, instead relying on more educational measures.^{[28]: 39–40}

Due process concerns

The EFF says that the mitigation measures may be imposed without any due process, placing the burden of proof on consumers to show that allegations of copyright infringement are unfounded. The organization recommends that, in the absence of copyright infringement detection systems which have been demonstrated to be entirely accurate, the burden of proof must be on the content providers to show copyright infringement prior to the mitigation measures. Bridy writes that IP address collection and content identification methods should be held to a much higher standard (including review by an independent expert with no contractual obligations to the CCI nor non-disclosure obligations), especially since an alert itself can trigger a sanction.^[28]: 53

The EFF argues that the procedure for objecting to an alert is unfairly burdensome to the consumer and biased towards the media companies.^[29] Bridy says that because the Copyright Alert System arises from a mass consumer contract, the potential for the repeat-player effect to jeopardize the neutrality of the arbitrators is present.^[28]: 55 However, Bridy writes that the independent review process is optional, and users are free to go to court to remove alerts or challenge mitigation measures, unlike in other consumer contracts where arbitration is mandatory. Although Bridy says that few subscribers will go to court owing to the possibility of a large damages award, this alternative allows for full due process safeguards.^[28]: 55

Further reading

• Richwine, Lisa, “Internet providers to act against online pirates”, Reuters, July 7, 2011. Retrieved November 6, 2011.
• Challis, Ben, “US content industry and ISPs to inform and alert”, The 1709 Blog, July 8, 2011. Retrieved November 6, 2011.
• Suarez, Paul, ”Copyright Cops Team with ISPs to Crack Down on Music, Movie Pirates”, PCWorld.com, July 7, 2011. Retrieved November 6, 2011.
• Kravets, David, "ISPs to Disrupt Internet Access of Copyright Scofflaws", Wired, July 7, 2011. Retrieved November 6, 2011.

See also

• Chilling effect (law)

References

External links

• Official website