– Jake Sherlock, Law Student, William Mitchell College of Law
Move over NSA, there’s a new Big Brother in town! As you are almost certainly not aware, the Copyright Alert System was implemented on February 25, 2013. The CAS is the result of an agreement between the Copyright Industry (particularly the MPAA and the RIAA) and many of the country’s largest Internet Service Providers (such as Comcast, Time-Warner, Cablevision, AT&T, and Verizon). What it means for you, the average internet user, is that the Copyright Industry is always going to be looking over your shoulder, diligently monitoring your usage of file sharing services in an effort to catch you in the act of sharing the latest episode of Real Housewives of Beverly Hills. Reactions to the CAS have been mixed, with some commentators calling it “groundbreaking,” while others think that it is “not going to go well.”
The CAS is a form of a “graduated response” system. The hallmark of graduated response is the use of an escalating series of “strikes” to discourage internet users from illegally sharing copyrighted material online. The ISPs implementing the CAS are required to give internet users five or six strikes. For instance, on the first strike an internet user might be met with a pop-up notice that merely gives a warning. A second strike could get the user a same or similar notice. The third and fourth strikes would generally require the user to give acknowledgement of the notice to the ISP. The fifth and sixth strikes would have a “mitigation measure” attached that could include a temporary suspension of the user’s internet access. Each ISP will have its own version of the CAS that may vary slightly. An example of Comcast’s version can be found here.
Systems similar to the CAS have been implemented successfully in Europe. France had a government backed system known as HADOPI, though in July of this year it switched to an automated fine model. Meanwhile, the Irish Supreme Court recently ruled that the ISP Eircom can continue to operate its system. Despite these successes abroad, significant flaws with the CAS may prevent it from being the magic bullet the Copyright Industry hopes it to be.
One of the major issues is the sheer lack of oversight regarding the implementation of the system. For instance, the CAS has been implemented for almost a year. Has it been effective in curbing online copyright infringement? Who knows! The Center for Copyright Information (the body that oversees the CAS) is not at all required to release statistics that show whether or not the system is working. Did you receive a notice that you feel was unwarranted? Do you want to challenge it? Good luck! You have to pay $35 for the privilege to arbitrate your claim in front of Arbitrators chosen by the CCI, have a limited amount of time to prepare your case (15 days if you are a Comcast subscriber), and you do not even have the benefit of the full array of rights allowed by the Copyright Act. Do you want to know how or why your internet account was chosen for a notice? Too bad, that’s been redacted. Oh, and not to mention it may be in violation of antitrust laws.
With a system weighted so heavily in the Copyright Industry’s favor, surely there should be an Independent Examiner, someone without a stake in the game that can objectively review the methods and practices of the system to ensure that it is operating fairly. It just so happens that the CCI had such a figure, choosing global digital risk management and investigations firm Stroz Friedberg for this task. However, based on the above consumer rights abuses, it should come as a surprise to no-one when it was discovered that Stroz Friedberg was a former lobbyist for the RIAA during its heaviest years of litigation against suspected file sharers. Only after this information was leaked did the CCI remove Stroz from the position, eventually selecting Harbor Labs to take its place.
Given the flaws of the CAS, it appears that some changes should be made to make it more palatable to internet users. To this point, Gigi Sohn, president and CEO of the non-profit Public Knowledge (and CCI advisory board member) acknowledges that there is a “trust deficit” that threatens to undermine the public’s acceptance of the CAS, and that unless this deficit can be eliminated the general internet public will be prevented from accepting the system. Ms. Sohn proposes several solutions to attempt to rectify this issue, including a greater commitment to transparency, a suggestion that the Copyright Industry scale back efforts to push new copyright enforcement legislation, and most importantly, that the content industry should focus their efforts on making their content legally available on consumer friendly platforms at a fair price.
Will the Copyright Industry and the ISPs take heed of these suggestions? Possibly. Given the Copyright Industry’s track record, it is also entirely possible that they stick their heads in the sand and refuse to admit that the world has changed and that pre-internet business models are no longer feasible. For now, all we can do is hope that eventually this Big Brother can leave 1984 and join the rest of us in 2014.